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Whistleblowing Takes New Turn with Mandated Reporting Imposed by PPACA’s Elder Justice Act

By: Allen B. Roberts, Victoria M. Sloan

The typical set of protections or awards featured in a familiar array of whistleblower statutes has a new entrant with the imposition of mandated reporting in the Elder Justice Act section of the recently enacted Patient Protection and Affordable Care Act (“PPACA”). In a notable departure from other laws, the Elder Justice Act provides that every individual employed by or associated with a long-term care facility as an owner, operator, agent or contractor has an independent obligation to report a “reasonable suspicion” of a crime affecting residents or recipients of care. Reports must be made directly to both the Secretary of Health and Human Services (“HHS”) and one or more law enforcement entities in as little as two hours following the formation of the reasonable suspicion.

Although limited to reports of crimes against residents and recipients of services of long-term care facilities, the mandate of the Elder Justice Act sets a new standard of conduct – and backs it up with stiff penalties affecting long-term care facilities and those associated with them.

Notice and Reporting Obligations and Timeframes

Each owner, operator, employee, manager, agent or contractor of a long-term care facility that receives at least $10,000 in federal funds annually under PPACA is considered a “covered individual” subject to the reporting obligations. Every year, each long-term care facility must notify all covered individuals of the obligation to report a crime against a resident or recipient of care. Additionally, a notice of employee rights against retaliation (in a form to be prescribed by the Secretary of HHS) must be posted conspicuously in the facility.

Once a covered individual forms a reasonable suspicion that a crime against a resident or recipient of care has occurred, the reporting clock begins to run. Within the time provided in the Elder Justice Act, the individual must report the suspicion to the Secretary of HHS and one or more other law enforcement entities for the political subdivision in which the facility is located. The reporting time limits are stringent:

  • If the events that cause the suspicion result in serious bodily injury, the individual must report the suspicion immediately, but not later than two hours after forming the suspicion.
  • For events that do not result in serious bodily injury, the suspicion must be reported within 24 hours after forming the suspicion.

Penalties

Failure to comply could subject the covered individual to a civil monetary penalty of up to $200,000. If the failure to report exacerbates harm to the victim, or results in harm to another individual, the maximum penalty is increased to $300,000. But a severe monetary penalty is not the only possible consequence.  An individual who does not fulfill reporting obligations may be classified as an “excluded individual” who becomes ineligible to participate in any federally funded plan or program that provides health benefits, through insurance or otherwise. And a long-term care facility must scrupulously monitor the status of its employees; it may become ineligible to receive federal funds under PPACA if it employs an individual during the period the individual is considered such an “excluded individual” – even if the facility has no connection to the crime, its victim or any failure to report it.

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Further Analysis Available

Our recent article published in the CCH Health Care Compliance Letter, June 29, 2010, Mandatory Reporting of Elder Abuse in PPACA Creates Additional Risk and Compliance Burdens for Long-Term Care Providers (pdf), offers a comprehensive analysis of the Elder Justice Act and action steps that long-term care facilities should consider as compliance measures.