WASHINGTON – Today, U.S. Senators Amy Klobuchar (D-MN), Tina Smith (D-MN), and Richard Blumenthal (D-CT) wrote to Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma urging CMS to better identify and respond to cases of elder abuse and neglect. The senators’ letter follows two reports by the U.S. Department of Health and Human Services
One of the OIG reports revealed that out of a sample of 100 Medicare claims for an emergency room visit, 94 visits could have been the result of elder abuse and neglect. Out of those cases, only a third of all possible cases were reported to law enforcement. A separate sample in the second OIG report revealed that 20 percent of Medicare patients who visited the emergency room from a Skilled Nursing Facility (SNF) could have been the victim of elder abuse and neglect. Devastatingly, medical personnel and SNFs largely failed to report these instances to law enforcement or CMS Survey Agencies.
In their letter, the senators urge CMS to take meaningful action by implementing all of the OIG’s recommendations, creating a system to identify and take action against abusers.
“Instituting the changes as recommended by the OIG and implementing meaningful enforcement penalties for violations within health care facilities and SNFs will ensure that CMS is able to adequately identify all possible incidences of abuse, and ensure that those responsible are held accountable. Abusers have no place ‘caring’ for elders and it is CMS’ responsibility to ensure that this cycle of abuse and neglect does not continue,” the senators wrote.
The full text of the letter can be found below:
Dear Administrator Verma,
We are writing with great concern regarding the findings of two reports regarding elder abuse released on June 12, 2019 published by the Department of Health and Human Services’ (HHS) Office of the Inspector General (OIG). These two reports paint an alarming yet revealing picture of the abuse that older Americans are confronted with each year. However, they also recommend important solutions. The Centers for Medicare & Medicaid Services (CMS) must take action to implement each of these recommendations without delay to protect patients from further harm. CMS must take immediate and effective action in the wake of these reports.
Both reports, “CMS Could Use Medicare Data to Identify Instances of Potential Abuse or Neglect” and “Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated” seek to identify an approximation of the number of elder abuse or neglect cases that resulted in hospitalization. By analyzing hospital billing codes, the OIG was able to identify a staggering number of cases, many of which go unreported to State Agencies or law enforcement agencies, or both.
In “CMS Could Use Medicare Data to Identify Instances of Potential Abuse or Neglect,” in a sampling of 100 Medicare claims, 94 were determined to be the result of elder abuse and neglect. Through this sample, OIG estimated that 30,754 cases over the year and a half period between January 2015 and June 2017 contained evidence indicating elder abuse or neglect as the cause. Of these cases, it is estimated that 2,574 instances of abuse were at the hands of a health care worker and 3,330 occurred within a medical facility. Cases of sexual abuse, physical abuse, neglect, and maltreatment were all noted. Devastatingly, an estimated 9,924 cases – a third – were related to incidents that were never reported to law enforcement, meaning that these individuals could have been placed back into the hands of their abusers to endure continual abuse and suffering.
The OIG’s second report, “Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated” echoed this disturbing trend at Skilled Nursing Facilities (SNFs). By reviewing a sample of 256 emergency room Medicare claims from 2016 with a billing code that could indicate abuse or neglect, OIG estimated that 7,831 cases, nearly one fifth, of all 37,607 claims originating from a SNF may have been the result of abuse or neglect. An estimated 6,608 of these cases were not reported by SNFs to CMS Survey Agencies. Of the majority of those that were reported, Survey Agencies did not follow through by reporting them to law enforcement.
Many SNFs cited a misunderstanding of CMS guidance as the reason for not reporting to Survey Agencies. In addition, CMS does not require Survey Agencies to enter incidents into the ASPEN Complaints/Incidents Tracking System (ACTS) if they are self-reported by the SNF. With this lack of data, CMS is unable to track and respond to incidents indicating abuse and neglect. Ultimately, SNF’s lack of accountability has created a culture of abuse and neglect that has been fueled by a lack of action and clarity on behalf of CMS.
I applaud CMS for acknowledging this deficiency and agreeing to clarify and improve guidance and training on neglect and abuse for both SNFs and Survey Agencies in response to the four recommendations included in “Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated.”
However, this is just the first step, as CMS has the power to more broadly address the culture of abuse and neglect evidenced in these reports, but has thus far refused to accept the responsibility and take further action. For instance, despite an Early Alert by OIG, CMS failed to follow through and create a model to extract data and identify possible incidents of abuse. Worse, out of the four recommendations in “CMS Could Use Medicare Data to Identify Instances of Potential Abuse or Neglect,” CMS also only agreed to only implement one recommendation, citing concerns about the timeliness of the data and a lack of jurisdiction over incidences that occurred in places outside of CMS’ purview. OIG disagreed with these concerns and continued to advocate for the implementation of all four recommendations.
CMS’ lack of interest in fully implementing all four of OIG’s critical recommendations in CMS Could Use Medicare Data To Identify Instances of Potential Abuse or Neglect will endanger far too many seniors. CMS must follow all recommendations made by the OIG, including the following:
•“compile a complete list of diagnosis codes that indicate potential physical or sexual abuse and neglect;”
•“use the complete list of diagnosis codes to conduct periodic data extracts of all Medicare claims containing at least one of the codes indicating either potential abuse or neglect of adult and child Medicare beneficiaries;”
•“inform States that the extracted Medicare claims data are available to help the States ensure compliance with their mandatory reporting laws;”
•“assess the sufficiency of existing Federal requirements, such as CoPs and section 1150B of the Act, to report suspected abuse and neglect of Medicare beneficiaries, regardless of where services are provided, and strengthen those requirements or seek additional authorities as appropriate.”
Instituting the changes as recommended by the OIG and implementing meaningful enforcement penalties for violations within health care facilities and SNFs will ensure that CMS is able to adequately identify all possible incidences of abuse, and ensure that those responsible are held accountable. Abusers have no place “caring” for elders and it is CMS’ responsibility to ensure that this cycle of abuse and neglect does not continue.
Please respond to this letter by August 2, 2019 with details about how and when CMS plans to implement each of recommendations from both OIG reports and what, if any, Congressional action is required.