The Recent Rise in Requests from State Protection & Advocacy Agencies
What is a State Protection & Advocacy Agency and How Should the Insured Respond
Guest bloggers: John P. Hessburg, Andrea S. DeLand and Kally Goodwin-Ratzloff
We have recently noted a dramatic increase in the number of requests for information received by facilities from State Protection & Advocacy Agencies (“SPAA”). SPAAs are federally funded non-profit entities that exist in each state and are statutorily authorized to monitor facilities and programs for suspected incidents of abuse and neglect.
An SPAA will oftentimes review state inspection surveys to determine the need for a more in-depth investigation, in which case, if deemed necessary, the SPAA will then invoke its federally granted authority to access certain facility records. The general public is also encouraged to report to SPAAs any suspected abuse or neglect.
Typically, an SPAA initiates its investigation by sending the facility a letter requesting information, such as employee and; resident records; incident reports; investigation summaries; and policies and procedures. Then, the facility is faced with interpreting the scope of the request to determine which documents the SPAA is entitled to access, as SPAA requests are often overbroad.
Facilities have limited time to respond to such an SPAA request. The law states that access to the appropriate requested records shall be given “promptly.”[1] In cases where an incident is reported to the SPAA or the SPAA has probable cause that a serious incident occurred, promptly means within 3 days of the written request.[2] In cases of death, or circumstances the SPAA believes gives rise to an immediate jeopardy of health and safety, promptly means within 24 hours of the SPAA’s request.[3]
A SPAA has the authority to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.”[4] Given this broad authority, an SPAA has many options available to sanction providers. SPAA legal teams have been known to file lawsuits to enforce their access rights to the timely release of records. In addition to these lawsuits, SPAAs may bring litigation whereby providing residents with direct representation, which can include class action lawsuits. In 2011, the Michigan Protection and Advocacy Service directly represented 291 individuals and provided referrals for 362 individuals. Due to the popular demand for representation, SPAAs commonly refer cases of alleged abuse and/or neglect to either law enforcement for prosecution or to plaintiff attorneys for civil litigation.
Additionally, SPAAs monitor facilities’ reporting practices to ensure that staff members who have been found to have abused, neglected, or mistreated resident(s) are reported to the appropriate licensing authority. Further, SPAAs file licensing complaints and refer mandatory reporters who fail to report to law enforcement for prosecution. SPAAs also pursue other remedies, such as filing complaints with the Office of Recipient Rights and the Centers for Medicare and Medicaid Services, which may affect reimbursement for care and/or services provided. In addition to other measures, SPAAs have been known to release survey information to the media, which can increase the likelihood of civil litigation.
Given the authority SPAAs are granted under the law, every long term care provider must know how to address a SPAA request in a timely and cautious manner. It is equally important to respond appropriately to such a request, by promptly releasing only the information required by statute. It is not uncommon for an SPAA to request more records than it is entitled to. It is important to realize the magnitude of risk exposure connected to a seemingly simple SPAA request, and to seek counsel if needed.
About the Authors:
John, Andrea and Kally represent the Long Term Care practice group with the firm of Kitch, Drutchas, Wagner, Valitutti & Sherbrook, P.C., in Detroit, Michigan. The Kitch Firm has been representing healthcare providers for over 40 years. John, a Principal in the firm and leader of The Long Term Care practice has built a multidisciplinary practice that focuses on the many challenges long term care providers face on a daily basis, which include general healthcare and regulatory compliance, corporate compliance, federal and state administrative law, defense of state and federal false claims actions as well as professional negligence claims.