Guidance for Investigating & Reporting Alleged
Violations in Nursing Homes
of DQA 11-032 (PDF, 80 KB)
|| December 5, 2011 -- DQA Memo 11-032
Homes NH 22
|| Juan Flores, Director
Bureau of Nursing Home Resident Care
Shari Busse, Deputy Administrator
Division of Quality Assurance
Otis Woods, Administrator
Division of Quality Assurance
Guidance for Investigating & Reporting Alleged
Violations in Nursing Homes
The purpose of this memo is to clarify what constitutes a reportable
alleged violation, including a violation of resident-to-resident abuse that
should be reported to the Division of Quality Assurance (DQA), Office of
Caregiver Quality (OCQ). For purposes of this memo, an incident includes any
allegation involving mistreatment, abuse or neglect of a resident,
misappropriation of a resident's property, or injuries to a resident of
This memo contains important clarification regarding Investigation
Requirements & Guidance, including:
- Injury of Unknown Source;
- Initial Evaluation;
- Thorough Investigation criteria;
- Resident-to-Resident Altercations; and
Per Centers for Medicare and Medicaid Services (CMS) direction, all
nursing homes must immediately report all alleged violations involving
mistreatment, neglect, or abuse, including injuries of unknown source, and
misappropriation of resident property to the facility administrator and to
DQA. CMS defines "immediately" to be as soon as possible but not
to exceed 24 hours after discovery of the incident.
The facility must have evidence that all alleged violations are
thoroughly investigated, and must prevent further incidents while the
investigation is in progress. The results of all investigations must be
reported to the administrator (or their designee when the administrator is
absent from the building) and to OCQ within 5 working days of the incident.
If the alleged violation is verified, the facility must take appropriate
Each resident has the right to be free from abuse, corporal punishment,
and involuntary seclusion. Residents must not be subjected to abuse by
anyone, including but not limited to facility staff, other residents,
consultants or volunteers, staff of other agencies serving the resident,
family members or legal guardians, friends, or other individuals. Because
the federal definitions do not specify that the incident has to involve a
caregiver, nursing homes are required to submit allegations of abuse or
mistreatment by anyone, including resident-to-resident incidents, to DQA
Investigation Requirements & Guidance
Facilities should continue to follow the guidance provided in DQA Memo
10-008 with the additional guidance found in this memo. All nursing homes
must develop written procedures regarding allegations of abuse, neglect or
- What incidents are to be reported and when;
- How and to whom staff are to report incidents;
- How internal investigations will be completed for different types of
investigations and what constitutes a "thorough"
- How residents will be protected from further incidents while an
investigation is conducted;
- How staff will be trained on the procedures related to allegations of
- How residents (and guardians, as appropriate) will be informed of
All nursing homes must ensure that all employees, contractors,
volunteers, and residents are knowledgeable about the nursing home's
reporting procedures and requirements. Staff must be trained to immediately
report to the administrator (or his or her designee when the Administrator
is absent from the building) all incidents of misconduct, including abuse or
neglect of a resident, misappropriation of a resident's property, or
injuries to a resident of unknown source. Immediately upon learning of an
incident, nursing homes must take the necessary steps to protect residents
from possible further incidents of misconduct or injury.
Injury of unknown source
Reference: Injury of Unknown Source Flowchart
CMS requires that nursing homes report all injuries to a resident of
unknown source. The federal interpretative guidelines for 42 CFR §
484.13(c)(2) and (4) define injuries of unknown source to mean an injury
- was not observed by any person or the source of the injury could not
be explained by the resident, and
- is suspicious because of the extent of the injury or the location of
the injury (e.g., the injury is located in an areas not generally
vulnerable to trauma) or the number of injuries observed at one
particular point in time or the incidence of injuries over time. (S
Both elements of the definition must be met for the incident to be
defined as an injury of unknown source and be reported to the Division of
Quality Assurance. There are several factors to consider when determining if
an injury is suspicious. An injury may be suspicious based on the extent of
the injury, for example the size or severity of the injury such as a large
bruise, a skin tear or a broken bone. An injury may also be suspicious due
to the location of the injury, such as bruising to the inner thigh, the back
or any area not generally susceptible to trauma. Suspicious injuries also
include multiple injuries such as bruising, or multiple injuries over a
period of time. If the injury is suspicious and was not observed or the
resident is unable to explain what happened, the injury meets the federal
definition of an injury of unknown source and must be reported to DQA.
In limited circumstances it may be unclear whether the circumstances
surrounding an allegation meet the definition of a reportable incident.
Nursing homes may then conduct an initial evaluation of the allegation prior
to reporting to DQA. Generally initial evaluations occur only regarding
allegations involving misappropriation of a resident's property, injuries of
unknown source, or some resident-to-resident altercations
Missing Item Example:
Resident Carl reports to CNA Joan that someone has stolen his
bathrobe. Joan reports the allegation immediately to her supervisor, Louise.
Louise knows that Carl's family often does his laundry. Louise calls Carl's
daughter who confirms that she took the bathrobe home with her yesterday for
In this case, the initial evaluation determines that no misappropriation
of Carl's property occurred. It is not necessary to report the allegation to
RN Monique observes one small bruise on the right hand of Resident
Linda. Monique asks Linda how she got the bruise. Linda replies that she
doesn't know. Monique checked with other staff and no one is aware of how
Linda bruised her hand. Although Monique is unable to determine how the
bruise occurred, she does not find the injury suspicious because the bruise
is small and is in an area of the body that is susceptible to injury.
In this case, the initial evaluation confirms that the bruise does not
meet the federal definition of an injury of unknown source. Although Monique
cannot determine the source of the injury, the injury is not suspicious and
therefore does not need to be reported to DQA.
An initial evaluation should be well documented. In the above examples,
the initial evaluation revealed it was not necessary for the entity to
immediately report or investigate further. An initial evaluation should be
concluded quickly and does not extend the timeline for reporting.
All nursing homes must immediately begin a thorough investigation of any
reported incident, collect information that corroborates or disproves the
incident, and document the findings for each incident. A thorough
investigation may include:
- Collecting and preserving physical and documentary evidence
- Interviewing alleged victim(s)
- Identifying and interviewing other staff or residents in the immediate
area at the time of the incident who may have witnessed what occurred
- Interviewing the accused individual(s)
- Interviewing other residents to determine if they have been abused or
- Interviewing staff who worked the same shift as the accused to
determine if they ever witnessed any abuse or mistreatment by the
- Interviewing staff who worked previous shifts to determine if they
were aware of an injury or incident and
- Involving other regulatory authorities who may assist, e.g., local law
enforcement, elder abuse agency, Adult Protective Service agency.
CMS does not specifically identify what information must be included in a
thorough investigation. Nursing homes have some discretion in determining
what information to collect to complete their investigation. A thorough
investigation is an investigation that adequately addresses the
circumstances of the allegation. The investigation should include the facts
necessary to form a reasoned conclusion as to what happened. In some cases a
facility may not be able determine what actually occurred. The facility
should document their investigation and the reasons for their conclusion.
The goal of an investigation is to enable the facility to prevent future
The following important elements of an investigation serve as guidelines.
Be sure to consider the appropriate elements each time an investigation is
- What is the specific allegation? This is the basis of the
investigation. Compare the allegation to the definitions of misconduct.
Ask if the information being gathered is related to the incident and
addresses the elements of the offense.
- Who was present at the time of the incident? (Victim, perpetrator,
- Who else might have information about the incident? (Other caregivers
on duty, supervisors, visitors, maintenance or kitchen staff, social
- Include all persons who are connected in any way with the incident
under investigation. Identify each person separately in such a manner
that he/she cannot be confused with any other individual, including full
name, nicknames, demographic and contact information.
- Interview other staff who might know or have information about the
behaviors of the residents or the staff person in question.
- Where did it happen? (Specify the exact location.)
- When (date and time) did it happen?
- How did it happen? (Recreate the alleged incident. Could it have
happened the way the reporter stated?)
- Why did it happen? What was happening immediately prior to the
incident? What happened immediately afterward?
Additional elements must be included based on the type of misconduct:
- Written and signed statements by witnesses, which include a
description of the amount of physical force used. This may include, but
isn't limited to, the acceleration of force; the range of motion of the
perpetrator; open hand or closed fist.
- A description of the victim's reaction to the physical force. For
example, the victim fell backwards, victim vocalizations, or indications
- Verbal Abuse/Psychological Abuse
- A statement of the exact words used to the best of the witnesses' or
- The volume (loud or soft) and tone of voice (e.g.sarcastic,
sneering)of the accused, , a description of the accused's body language
or any accompanying gestures
- The effect of the words on the victim, e.g. fearful, crying, angry,
- The results of any physical assessment conducted by a medical
professional including doctors or Sexual Assault Nurse Examiners (SANE
- The results of any psychological assessment conducted by a mental
health professional or social worker
- A copy of the police report
- All medical information related to the incident
- Documentation of the treatment, service, care, goods or supervision
required but not provided
- Documentation verifying the caregiver's duty to provide care to the
Verification that the act or failure to act resulted in or could
reasonably have resulted in harm
- A description of any stolen items
- Copies of all financial records related to the incident including
cancelled checks or credit card statements
- A copy of the police report
- Verification that the stolen items belonged to the victim
- Verification that the victim did not/could not give consent to the
- Documentation of each resident's cognitive abilities, diagnosis, etc.
- Analysis of the altercation to determine if the resident(s) had
willful intent (e.g., through immediate interviews of residents and
eyewitnesses, observations, etc.).
- Consideration of the resident's ability to form intent or to act
- Determination of a resident's ability to understand the possible
outcome of his/her actions.
- Documentation of the outcome to the victim.
Reference: Resident-to-Resident Altercation Flowchart
An incident involving a resident who willfully inflicts injury upon
another resident should be reviewed as a potential situation of abuse under
the guidance for 42 C.F.R. § 483.13(b) at F223. Note that the federal
definition of abuse indicates that the act must be "willful" and
that it needs to have resulted in physical or psychosocial harm to the
resident or would be expected to have caused harm to a "reasonable
person" if the resident cannot provide a response.
For a definition of "willful," refer to the interpretive
guidelines at F323 Resident-to-Resident Altercation where, under
Resident-to-Resident Altercations, it notes, "An incident involving a
resident who willfully inflicts injury upon another resident should be
reviewed as abuse under the guidance for 42 CFR §483.13(b) at F223.
"Willful" means that the individual intended the action itself
that he/she knew or should have known could cause physical harm, pain, or
mental anguish. Even though a resident may have a cognitive impairment,
he/she could still commit a willful act. However, there are instances when a
resident's willful intent cannot be determined. In those cases, a
resident-to-resident altercation should be reviewed under F323."
All altercations must be immediately reported to the administrator;
further, all incidents must be reported to DQA if facility staff members
determine that the aggressor's actions were willful or if the facility
cannot immediately rule out willful intent and if the altercation resulted
in pain, physical injury or psychosocial harm. Providers may immediately
conduct an initial evaluation to analyze a resident-to-resident altercation
to determine if it meets the definition of abuse (i.e., the resident(s) had
willful intent and the altercation resulted in physical or psychosocial harm
to a resident).
Neither CMS nor DQA mandate a specific evaluation tool or method.
Facilities use a variety of assessments in determining a resident's mental
status. Questioning the resident about his/her understanding of the
consequences of his /her actions is important. This interview should take
place immediately after the occurrence, if possible:
- If the resident cannot understand cause and effect, cannot remember
the incident or understand what is being referred to, it is unlikely
that the resident is/was able to form intent.
- If the resident remembers the occurrence, knows that his/her actions
could have harmed another person, or verbalized intent (e.g., "I'm
going to get you"), then the resident is/was able to form intent.
Under these circumstances, the incident is reportable if pain, injury,
or psychosocial harm has occurred or the likelihood of pain, injury or
psychosocial harm using the reasonable person concept has occurred.
A diagnosis of dementia or Alzheimer's does not rule out the ability of a
person to form intent. The facility needs to determine if the resident has
the ability to understand the possible outcome of his/her actions. Does the
resident understand that if s/he hits, bites, pushes, etc. another person,
that person could be injured? If the resident does not understand, the
incident is not reportable. If the resident does understand, or if the
facility does not rule out intent (either because the facility did not try
to determine intent or was unable to rule out intent), then the incident
should be reported if injury, or the potential for psychosocial injury using
the reasonable person concept, has occurred. According to federal hearing
decisions, a "resident does not need to have intended harm for the
resident's actions to be willful." For an action to be
"willful," the resident needs to have intended the action (e.g.,
the push or hitting) and needs to understand that such an action could have
Two residents, each with a diagnosis of dementia are involved in an
altercation. Staff heard the residents yelling and found resident A standing
over resident B. Resident A was shouting, "I told you to stay out of my
room." Resident B was lying on the floor of resident A's room and had
sustained a one-centimeter laceration to his arm. When questioned, resident
B was unable to relate what happened. Resident A stated that he struck
resident B when he failed to leave the room. Resident B has a history of
wandering and resident A has a history of being very territorial.
Analysis: Both elements of abuse - injury (1-cm. laceration) and intent -
are present, so this is reportable. Resident A was able to state that he had
hit resident B and gave the reason for striking him. This would indicate an
ability to form intent. The resident had an injury, a laceration to his arm.
In addition to reporting, the facility is responsible for assessing the
situation, identifying measures to keep residents safe, and for updating the
care plans of Resident A and/or B.
While being pushed in her wheelchair in the hallway, resident A,
who has dementia and a history of striking out, swats resident B on the arm
as she passes her. Resident B states she is not hurt (no pain) and that she
is not afraid of resident A. When asked why she hit resident B, resident A
does not recall having done this.
Analysis: Neither of the elements of abuse are present, and this is not
reportable. It does not appear that resident A is/was able to form intent.
Resident A's care plan shows that she has a history of unprovoked striking
out and her assessment shows that she does not understand that this could
hurt someone. Injury has not occurred; resident B denies pain, does not have
a laceration, and states she is not afraid of Resident A.
Even though this is not reportable, the facility is still responsible for
assessing the situation, identifying measures that may be needed to keep
other residents safe from Resident A, and updating the care plan as
A staff member observed a male resident fondling the breasts of a
female resident. The female resident was interviewed but has severe dementia
and could not relate what happened. The male resident has a psychiatric
diagnosis but was able to be interviewed. He denied fondling the resident.
Analysis: This is reportable. The female resident has a history of severe
dementia and is unable to give consent. There is nothing in the record to
indicate that these two residents have an intimate history and that this was
a consensual act. Using the "reasonable person" concept, because
the female resident cannot describe her feelings or reactions, psychosocial
harm has occurred. Although the male resident has a psychiatric diagnosis,
the facility was able to interview him and believed that he knew what he was
Regardless of whether this was a reportable incident, the facility is
responsible for assessing the situation, identifying measures to keep
residents safe, and for updating the care plan(s) of the residents involved.
Staff overheard resident A, who is alert and oriented, shout at his
roommate (resident B), "Shut the hell up. You moan all the time. Shut
up or I'll shut you up." Resident B responds by crying and tells staff
he is afraid of his roommate.
Analysis: This is reportable because verbal abuse has occurred. Resident
A has knowingly threatened resident B. Intent to cause harm is present.
Federal interpretative guidelines define "verbal abuse" as the use
of oral, written or gestured language and include "threats of
harm", regardless of the age, ability to comprehend, or disability of
In addition to reporting, the facility is responsible for assessing the
situation, identifying measures that may be needed to keep other residents
safe from Resident A, and updating the care plan as necessary.
A resident's daughter reported that her mother's ruby ring, which
she last saw two days ago, was missing. The resident has mild dementia, but
the daughter insisted the resident would not willfully remove the ring from
her finger. The daughter implied a staff member was responsible.
Analysis: At this point the facility could conduct an initial evaluation
to search for the ring. If staff do not find the ring during this initial
search (which must be done immediately), this is reportable.
The facility was given $21.00 by three different families on
Wednesday in payment for a zoo outing on Friday by their respective family
members/residents. The person at the desk took the money and gave it to the
nurse, who locked it in the medicine drawer. On Friday morning, the Social
Worker asked the nurse for the money for the three residents to go to the
zoo. There was no money in the medicine drawer.
Analysis: The facility could not immediately determine what had happened
to the money because the staff members who were questioned denied any
knowledge of the missing money. This is reportable. The money was a gift
that belonged to the residents. The money was in a locked drawer and only
the staff had a key to the drawer.
See the following investigation resources:
Unknown Source Flowchart
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May 07, 2013