The New Jersey Mandatory Adult Abuse Reporting Law requires that any caretaker, social worker, physician, registered or licensed practical nurse or other professional who, as a result of information obtained in the course of his [or her] employment, has reasonable cause to suspect that an institutionalized elderly person is being or has been abused or exploited shall report such information in a timely manner to the Ombudsman for the Institutionalized Elderly or the person designated by him to receive such report.
"Abuse" means the willful infliction of physical pain, injury or mental anguish; unreasonable confinement; or the willful deprivation of services which are necessary to maintain a person's physical or mental health." N.J.S.A. 52:27G-2(a).
"Exploitation" means the act or process of using a person or his [or her] resources for another person's profit or advantage without legal entitlement to do so." N.J.S.A. 52:27G-2(e).
You will note that the word "neglect" does not appear in the reporting statute or the definitions. That is because the elements of willful neglect of a resident, namely "willful deprivation of services," are subsumed in the definition of "abuse" for purposes of the Ombudsman.
Neither "reasonable cause to suspect" nor "timely manner" is defined in the statute. "Reasonable cause to suspect" is really fact-sensitive, but the standard is quite broad. It does not require any level of proof; merely a reasonable suspicion. As a rule of thumb, a fair interpretation of "timely manner" would be within one business day.
The person designated to receive the report is the staff member in our office who answers the hotline number:
1-877-582-6995
Accordingly, you, or a member of your staff, MUST make a report to this office when abuse or exploitation, as defined above, is witnessed or suspected.
By statute, the ombudsman or a member of the ombudsman staff must receive that report. Voice mail technology is not sufficiently reliable. If you leave a voice mail message and do not receive a call back within one business day, you must call again.
A dictionary definition of "willful" is "deliberate, voluntary or intentional."
By way of example, if a nurse aide knows that a resident is designated as a "two-person lift" and voluntarily tries to lift the resident herself, would that be considered "willful?" Did she intend to inflict pain? Doubtful. Did she voluntarily deprive the resident of services necessary to preserve her health? The reasonable answer would be “yes.” The necessary services are the assistance of a second aide.
Failure to report in accordance with the dictates of the Mandatory Adult Abuse Reporting Act can result in a fine from this office in an amount up to $5,000 per incident (N.J.S.A. 52:27G-7.1(f)). Please note that these fines are assessed against the individual professional who had the duty to report and failed to do so, not against the facility.
Federal Laws and Regulations
The Health Care Financing Administration (HCFA) issued new guidelines on August 25, 2000, which standardize the definitions of "Immediate Jeopardy," "Abuse," and "Neglect" across all Medicare and Medicaid provider types. The definitions are similar, but in some ways broader than our state law definitions.
Immediate Jeopardy: "A situation in which the provider's non-compliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment or death to a resident." (42 C.F.R. §489.3)
Abuse: "The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting harm, pain, or mental anguish." (42 C.F.R. §488.301)
Neglect: "Failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." (42 C.F.R. §488.301)
Federal regulations do require that "all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property are reported to … other officials (i.e., the Ombudsman) in accordance with state law through established procedures."
As mentioned above, the State Mandatory Adult Abuse Reporting Act does not mention or define the word "neglect." Essentially, neglectful conduct is included in the state definition of "Abuse." The big difference between the state and federal definitions is that the element of "willfulness" does not exist in the federal definition of "neglect." The other major difference is that the federal guideline makes specific reference to "injuries of unknown source."
Consequently, under federal regulations and guidelines applicable to Medicare and Medicaid providers, you MUST report all alleged incidents of abuse or neglect as defined here, as well as injuries of unknown origin.
The Office of the Ombudsman has not assessed fines for failure to report alleged instances of neglect, where the element of willfulness is absent, but federal regulations still require a report.
Please note that minor bruises do not necessarily qualify as injuries, and that the federal mandate to report injuries of unknown origin certainly does not preclude reporting injuries of known origin, where abuse or neglect are suspected.
What Else Should You Report?
The Legislature's mandate to this office is twofold: (1) to investigate and resolve complaints concerning certain health care facilities serving the elderly, and to initiate actions to secure, preserve and promote the health, safety and welfare, and the civil and human rights of the elderly patients, residents and clients of such facilities; and (2) to promote, advocate and insure, as a whole and in particular cases, the adequacy of care received and the quality of life experienced by elderly patients, residents and clients of such facilities.
Simply put, then, you should report any occurrence in your facility that has a potential impact on:
- The health, safety and welfare of your residents,
- Their civil and human rights,
- The adequacy of the care they receive
- The quality of life they experience.
What Not to Report
You need not call the Office of the Ombudsman when:
- There is a minor injury or bruise and there is no suspicion of abuse or neglect;
- You need legal advice (you should have access to a lawyer for this);
- Residents fight with other residents and there is no injury;
- Residents lose teeth, hearing aids or glasses (check the food trays);
- You are having trouble collecting money, and exploitation is not suspected.
What Will We Want to Know?
When our investigator arrives, the process can be expedited if you have available the items on the enclosed checklist. Again, I'm not mandating more paperwork; this checklist is provided only as a convenience to prepare for our visit when you have self-reported an incident. Several facilities have found it helpful.
Quick Reference
Another tool that has proved helpful to some administrators and Directors of Nursing is the Reporting Grid Guideline. Please feel free to distribute copies to your managers and supervisors.
If you have questions regarding mandatory reporting or other concerns, please contact the Office of the Ombudsman for the Institutionalized Elderly.
