Regulatory Review Recommendations by the Betsy Lehman Center to the Department of Public

Regulatory Review Recommendations by the Betsy Lehman Center to the Department of Public Health: Standards for Long-Term Care Facilities—Reporting of Serious Incidents and Abuse [105 CMR § 150.000] Regulation(s) Observation Recommendation Notes LONG-TERM CARE FACILITY REPORTING OF SERIOUS INCIDENTS AND ABUSE Definitions 1 105 CMR “Other incidents or accidents” definitions Define the terms in bold below from 105 CMR § §150.002(G)(3) We could not locate current definitions for 150.002(G)(3) by amending the regulation or key terms in 105 CMR §150.002(G)(3). updating Department guidance:

The Department defines "accident," "serious “Within seven days of the date of occurrence of incident,” “seriously affects the health and the event, each facility shall report to the safety,” and “causes serious physical injury” Department any other serious incident or in Circular Letter #15-03-629 Adult Day accident occurring on premises covered by the Health Program Licensure Guidelines – facility’s license that seriously affects the health 3/18/2015, but with respect to Adult Day and safety of a resident(s) or causes serious Health Programs only. physical injury to a resident(s).”

The Department may wish to apply the definitions from Circular Letter #15-03-629.

2 105 CMR § Abuse & neglect definitions Add definitions for abuse, neglect, 150.002 (G)(2) Currently, regulation 105 CMR § 150.002 (G) mistreatment, and misappropriation of (2) does not define the terms “abuse,” resident property by applying definitions in 105 “neglect,” “mistreatment,” or CMR §155.003 (“Patient and Resident Abuse “misappropriation of resident property.” Prevention, Reporting, Investigation, Penalties and Registry”).

Reporting procedures 3 105 CMR § 7-day reports for immediately reportable Clarify whether immediately reportable incidents Note that our new suggested 150.002 (G) serious incidents listed in 105 CMR §150.002 (G) (1,2) should also be language for 105 CMR §150.002 (G) It is unclear whether incidents that are reported in writing within 7 days. (1,2) assumes the term “written immediately reportable under 150.002 (G) report” includes reports via HCFRS. (1,2) should be reported by written report Here are two ways to possibly address the issue: (According to 105 CMR § 155.004: within 7 days in addition to the immediate (E) The term “written report” shall notification. Option #1: include, without limitation, an

1 Regulatory Review Recommendations by the Betsy Lehman Center to the Department of Public Health: Standards for Long-Term Care Facilities—Reporting of Serious Incidents and Abuse [105 CMR § 150.000] Regulation(s) Observation Recommendation Notes Amend 105 CMR §150.002 (G) (1,2) to read: electronically transmitted report We note that 105 CMR § 150.002(G)(3) “(3) Within seven days of the date of occurrence of and facsimile.) If not, replace with requires that “any other serious incident…” the event, each facility shall file a written report to the appropriate term. (italics added) be reported within 7 days, the Department for any incident pursuant to 105 which could be interpreted to exclude CMR 150.002(G)(1)and (2) and for any other We note that LTC serious incident incidents reportable under 105 CMR § incident or accident occurring on premises covered regulations only specify the 150.002(G)(1,2). by the facility’s license that seriously affect the timeframe for reporting serious health or safety of a residents(s) or causes serious incidents (immediate vs. 7 days) but physical injury to a resident(s).” not the reporting mechanism (phone vs. written report, etc.) DPH Option #2: guidance does specify that all Specify in Department guidance that facilities must immediately reportable events report incidents in 105 CMR §150.002 (G) (1,2) both should be reported by phone (see immediately by phone and also by written report circular letter below), but does not within seven days. clearly specify that these events should also be reported via HCFRS/written report within 7 days.

Circular Letter: DHCQ 13-9-599 “Please note that it is the responsibility of each facility to ensure: … Situations that require ‘immediate’ reporting to the Department continue to be reported to a live person by telephone (1-800 462 5540 – calls out of regular opening hours will be re-directed to an on call service) in addition to any online report – submitting the report online does not meet the immediate reporting requirement.”

2 Regulatory Review Recommendations by the Betsy Lehman Center to the Department of Public Health: Standards for Long-Term Care Facilities—Reporting of Serious Incidents and Abuse [105 CMR § 150.000] Regulation(s) Observation Recommendation Notes 4 105 CMR § Mechanism for immediately reporting Reconcile any conflicting regulations and guidance Because this observation pertains to 150.002 (G)(2) abuse and neglect (phone vs. email/fax) that specify how long-term care facilities should discrepancies between 105 CMR § immediately report suspected instances of abuse or 150.002 (including its related It is unclear how long-term care facilities neglect. guidance) and 105 CMR § 155.000 should immediately report instances of (“Patient and Resident Abuse”), we abuse and neglect given a discrepancy include the same recommendation between Department guidance and 105 in the Center’s public comment on CMR §§ 155.004. 105 CMR § 155.000.

According to Circular Letter: DHCQ 13-9- 599, LTC facilities should report all immediately reportable incidents—which include suspected instances of resident abuse and neglect—by phone.

However, 105 CMR §§ 155.004 (A,B) regarding patient and resident abuse allows reporters to make initial reports by “electronically transmitted report or facsimile.” Also, the Department’s online instructions for reporting abuse and neglect (“Facility reporting to DPH” webpage) suggest that the only incidents required to be immediately reportable by phone are unanticipated deaths and evacuations—not all cases of suspected abuse/neglect. Scope of reporting obligations 5 105 CMR Mandatory reporter & facility’s role Clarify the facility’s reporting obligations when a Because this observation pertains to §150.002(G)(2) mandatory reporter or supervisor makes an initial both 105 CMR § 150.002 and 105 1) A long-term care facility’s reporting report to the Department, whether by regulations CMR § 155.000 (“Patient and obligations are unclear in cases where a and/or guidance. Resident Abuse”), we repeat this mandatory reporter reports directly to recommendation in the Center’s the Department. public comment on 105 CMR § 155.000.

3 Regulatory Review Recommendations by the Betsy Lehman Center to the Department of Public Health: Standards for Long-Term Care Facilities—Reporting of Serious Incidents and Abuse [105 CMR § 150.000] Regulation(s) Observation Recommendation Notes 2) Is it unclear whether or not a long-term care facility’s reporting obligations under §150.002(G)(2) (LTC Incident reporting) and §155. 010(A)(1) (Patient Abuse—Responsibilities of the Facility) are satisfied when a mandatory reporter’s supervisor reports to DPH under §155.004(A) or (B), and whether this depends on the supervisor’s method of reporting (i.e. phone vs. fax/electronic communication).

6 105 CMR § Facility types covered Clarify by regulation and/or guidance which long- Because this observation pertains to 150.001 Discrepancies exist between the definition term care facilities are covered by 105 CMR §155 both 105 CMR § 150.002 and 105 of long-term care facility in 105 CMR § 150 and how that affects reporting obligations for CMR § 155.000 (“Patient and and other overlapping regulations that abuse and neglect. Resident Abuse”), we repeat this address patient resident abuse. recommendation in the Center’s public comment on 105 CMR § 1) Long-term care facilities, as defined in 155.000. 105 CMR § 150, are more expansive than those facilities defined under M.G.L. c.111, §71. However, regulations such as 105 CMR §155 (patient abuse regulations) and certain other regulations only apply to facilities licensed under M.G.L. c.111, §71, creating a gap in reporting obligations.

2) Intermediate care facilities for persons with an intellectual disability, while licensed under §71, do not appear to be “long-term care facilities” as defined in 105 CMR § 150.