Jeannine LeCompte, Compliance Research Specialist
Skilled nursing facilities (SNFs) are obligated to develop and implement written policies and procedures that ensure that the reporting of crimes occurring in federally funded institutions are made in accordance with the stipulations of the Social Security Act, and the reporting procedures must expressly prohibit any form of retaliation against the reporting individual or whistleblower.
According to the State Operations Manual Guidance to Surveyors of Long-Term Care Facilities (LTCs), these policies and procedures must include the following elements.
1. Annually notifying “covered” individuals (that is, owners, operators, employees, managers, agents, or contractors at an LTC) of that individual’s obligation to comply with the following reporting requirements:
- Each covered individual shall report to the State Agency and one or more law enforcement entities for the political subdivision in which the facility is located any reasonable suspicion of a crime against any individual who is a resident of, or is receiving care from, the facility.
- Each covered individual shall report immediately, but not later than 2 hours after forming the suspicion, if the events that cause the suspicion result in serious bodily injury, or not later than 24 hours if the events that cause the suspicion do not result in serious bodily injury.
2. Prohibiting and preventing retaliation, as defined at section 1150B(d)(1) and (2) of the Social Security Act.
These sections of the Act state that an LTC may not:
- discharge, demote, suspend, threaten, harass, or deny a promotion or other employment-related benefit to an employee, or in any other manner discriminate against an employee in the terms and conditions of employment because of lawful acts done by the employee; or
- file a complaint or a report against a nurse or other employee with the appropriate State professional disciplinary agency because of lawful acts done by the nurse or employee, for making a report, causing a report to be made, or for taking steps in furtherance of making a report.
Furthermore, the Act states that if an LTC violates any of these two above rules, that facility shall be subject to a civil money penalty of not more than $200,000, or the Secretary may classify the entity as an excluded entity for a period of 2 years, or both.
3. Each LTC shall post conspicuously, in an appropriate location, a sign specifying the rights of employees to report without fear of retaliation. Such sign shall include a statement that an employee may file a complaint with the Secretary of Health against an LTC that violates any of the provisions outlined above.
The US Equal Employment Opportunity Commission’s Enforcement Guidance on Retaliation and Related Issues states that retaliation occurs when an employer takes a materially adverse action because an individual has engaged in, or may engage in, activity in furtherance of any law or regulation.
This is a broad definition, and is designed to cover any action on the employer’s part which “might well deter a reasonable employee from complaining about discrimination.” Furthermore, an action need not be materially adverse standing alone, as long as the employer’s retaliatory conduct, considered as a whole, would deter any reporting activity.
Adherence to these regulations forms an important part of any comprehensive compliance and ethics program.
