| News & Events Personal Injury News Personal Injury Alerts |
Practice Areas
Defective Drugs
|
Defective Medical Devices Pacemakers/Defibrillators Defective Products Neglect and Abuse |
Contact Us Online Consultation |
||||||||||||||||||||||||||
| The Firm Mission Statement Firm History Verdicts & Settlements Our Attorneys |
 |
 |
|||||||||||
|
||||||||||||
 |
 |
Nursing Homes NewsSenate Aging Committee Holds Hearing on Physical and Sexual Abuse in Nursing Homes
A disturbing hearing on physical and sexual abuse in nursing homes, held by the Senate Special Committee on Aging on March 4, began with horrific testimony by a man whose mother's neck was broken by an aide, who beat the woman as she lay in her bed; a woman whose mother-in-law was murdered by a fellow resident; and a personal injury attorney, who described how his severely disabled young client was found in her nursing facility bed with a new-born infant still attached to her by his umbilical cord (and no one in the facility had known she was pregnant).
The second panel of the hearing, Safeguarding Our Seniors: Protecting the Elderly from Physical & Sexual Abuse in Nursing Homes, featured experts who offered solutions. Mark Malcolm, the County Coroner of Pulaski County, Arkansas, testified at the Committee’s hearing about the Arkansas law that requires facilities to report all deaths to the county coroner. Arkansas law also requires hospitals to report deaths of patients who are transferred from nursing homes and die within five days of admission. The coroner or a member of his staff examines each resident, reviews medical records, and interviews physicians, facility staff, and family members. Since July 1, 1999, Mr. Malcolm’s office has conducted approximately 2400 nursing home investigations and identified 56 deaths where the care provided had been grossly inadequate ("dinner plate-sized bed sores with infected and dying tissue, infected feeding tubes, rapid and unexplained weight loss, dehydration, improperly administered medications, and medication errors that resulted in death.")
The General Accounting Office reported that allegations of abuse and neglect are not reported promptly to local law enforcement officials or to state survey agencies by facility staff or by families; that nursing home abuse is difficult to prosecute because the evidence may be compromised (due to late reporting) and because few witnesses are available to testify; and that existing mechanisms to protect residents from abusive staff (criminal background checks, state registries) are inadequate. The GAO recommended that state survey agencies immediately notify local law enforcement offices or Medicaid Fraud Control Units when facilities report allegations of abuse or neglect to them. The Centers for Medicare & Medicaid Services said that it "will instruct state survey agencies that they are to immediately notify local law enforcement or MFCUs any time the survey agency confirms a complaint of abuse. The CMS will thoroughly review this recommendation when we evaluate all the information and recommendations that result from our Complaint Improvement Project." GAO, Nursing Homes: More Can Be Done to Protect Residents from Abuse 36, GAO/02-312 (Mar. 2002). The GAO report is at http://www.senate.gov/comm/aging/general/hr78gao.pdf.
Testimony presented at the hearing is at http://www.senate.gov/comm/aging/general/hr78.htm and is available from Toby S. Edelman in the Center's DC office at (202) 216-0028.
The Following is a Statement for the record submitted by the Center of Medicare Advocacy:
Safegaurding our Seniors: Protecting the Elderly from Physical and Sexual Abuse in Nursing Homes
The Senate Special Committee on Aging’s March 4 hearing on physical and sexual abuse in nursing homes brought public attention to an important issue that too many people would like to believe did not exist – the physical and sexual abuse of nursing home residents by their caregivers and fellow residents. Last summer’s report by the minority staff of the Special Investigations Division of the House Committee on Government Reform documented that abuse and neglect of residents occur with alarming frequency. Between January 1, 1999 and January 1, 2001, 1601 facilities (more than 9% of the nation’s nursing homes) were cited with abuse or neglect deficiencies that caused actual harm to residents or placed residents in immediate jeopardy of death or serious injury. Abuse of Residents Is a Major Problem in U.S. Nursing Homes 5 (Jul. 30, 2001).
As the Committee develops recommendations for addressing this problem, the Center for Medicare Advocacy proposes several solutions, in addition to the criminal background legislation introduced by Senator Kohl.
Reports and analyses
1. The Committee should require the Centers for Medicare & Medicaid Services to report to the Committee and to the public on implementation and enforcement of current federal rules that require states to (a) investigate possible facility culpability whenever an allegation is made that a certified nurse assistant has abused or neglected a resident or misappropriated a resident’s property and (b) take enforcement action against the facility, as appropriate. The Committee should also request that the General Accounting Office conduct a study of implementation and effectiveness of this federal regulatory requirement.
Existing federal rules, promulgated as part of the final enforcement rules in November 1994 (effective July 1, 1995), establish state survey agencies’ broad responsibility when allegations of abuse or neglect are made against certified nurse assistants. The rules state:
(h) Survey agency responsibility. (1) The survey agency must promptly review the results of all complaint investigations and determine whether or not a facility has violated any requirements in part 483, subpart B of this chapter. [These provisions reflect Requirements of Participation for facilities receiving Medicare and/or Medicaid reimbursement.]
(2) If a facility is not in substantial compliance with the requirements in part 483, subpart B of this chapter, the survey agency initiates appropriate actions, as specified in subpart F of this part.
42 CFR §488.335(h). The preamble to the final enforcement rules clarifies the "new requirement that State survey agencies consider all complaints of resident neglect or abuse, or misappropriation of resident property as a potential reflection on a facility’s compliance with Medicaid and/or Medicare participation requirements [emphasis supplied]." 59 Fed. Reg. 56,116, at 56,163 (Nov. 10, 1994).
In our experience, this requirement is rarely, if ever, implemented. Too often, staff members who are accused of abusing or neglecting a resident are simply dismissed by the facility and the matter is considered closed by both the facility and the survey agency. Even when an investigation occurs and the staff member’s name is added to the state’s registry of abusers who may not be employed in a facility in the future, there are apparently few, if any, instances when the facility’s own culpability is identified and sanctioned. The General Accounting Office confirmed our experience. In the 158 case files it reviewed, the GAO found only one instance when a remedy was imposed against a facility, and that remedy, a civil money penalty, was reduced on appeal. In the other 25 cases, no remedy was recommended or imposed. GAO, Nursing Homes: More Can Be Done to Protect Residents from Abuse, GAO-02-312, pages 5 and 12 (Mar. 2002).
A facility’s culpability can be the result of a number of systemic failures. Does the facility properly screen potential employees? Does the facility call references and conduct background checks, as required by state and federal law? Does the facility assure that each staff member is fully and appropriately trained before providing service to residents? Does the facility provide adequate supervision of workers? Does the facility have an appropriate abuse prevention protocol in place? And finally, does the facility employ enough staff to provide care to residents so that staff are not called from one crisis to another, leaving residents vulnerable and subject to avoidable harm?
Both CMS and the GAO need to analyze whether the regulatory requirement has been implemented. If this requirement has not been implemented, why not? If it has been implemented, has it made a difference in preventing abuse and neglect of residents? How can this regulatory requirement be strengthened to be more effective in preventing abuse and neglect of residents?
2. The Committee should require the Centers for Medicare & Medicaid Services to report to the Committee on the use and effectiveness of the Abuse Prohibition Review.
In July 1999, CMS added a comprehensive Abuse Prohibition Review (Task 5G) to the federal survey protocol in order to assure that facilities had "developed and operationalized policies and procedures that prohibit abuse, neglect, involuntary seclusion and misappropriation of property for all residents." State Operations Manual, Task 5G, page P-62. The SOM describes components of the review:These include [evaluation of a facility’s] procedures for the following:
Screening of potential hirees;
Training of employees (both for new employees, and ongoing training for all employees);
Prevention policies and procedures;
Identification of possible incidents or allegations which need investigation;
Investigation of incidents and allegations;
Protection of residents during investigations; and
Reporting of incidents, investigations, and facility response to the results of their investigations.
Id. How well is this investigative protocol working and has it made any difference in preventing abuse and neglect of residents? CMS should analyze use of this protocol and report to the Committee on its use and effectiveness. (The description of Task 5G is attached to this statement.)
3. The Committee should request that the General Accounting Office conduct a study identifying who commits abuse against residents. Who are the staff members who commit abuse? Who are the residents who abuse their fellow residents?
Senator Kohl has referred in the past to reports indicating that a large percentage of abuse is committed by a small number of workers with criminal backgrounds. The criminal background legislation he has introduced is intended to address this issue. Additional information about abusers would help inform public policy. For example, the GAO study should evaluate whether nursing facilities are permitted to use, and do use, the federal tax credit for employing people with criminal records, as authorized by the Work Opportunity Credit law (formerly known as the Targeted Jobs Credit). Do nursing facilities use the federal tax credit to employ ex-felons who should not be working in nursing homes, such as individuals convicted of violent crimes against dependent people? If facilities receive a tax credit for employing such workers, what are the implications for abuse and neglect of residents and should the federal law be amended to prohibit such use of the tax credit?
Federal legislation
4. Congress should enact legislation requiring nursing homes to report all deaths to state or county coroners.
Mark Malcolm, the County Coroner of Pulaski County, Arkansas, testified at the Committee’s hearing about the Arkansas law that requires facilities to report all deaths to the county coroner. Arkansas law also requires hospitals to report deaths of patients who are transferred from nursing homes and die within five days of admission. The coroner or a member of his staff examines each resident, reviews medical records, and interviews physicians, facility staff, and family members. Since July 1, 1999, Mr. Malcolm’s office has conducted approximately 2400 nursing home investigations and identified 56 deaths where the care provided had been grossly inadequate ("dinner plate-sized bed sores with infected and dying tissue, infected feeding tubes, rapid and unexplained weight loss, dehydration, improperly administered medications, and medication errors that resulted in death.")
Legislation modeled on Arkansas’ law should be enacted nationally.
5. Congress should enact legislation mandating specific nurse staffing ratios for nursing facilities. Congress should also enact legislation to improve training for certified nurse assistants and to increase the minimum number of hours of required training.
Phase 2 of CMS’ nurse staffing report documents, as did the Phase 1 report released in July 2000, that most facilities have too few staff to meet residents’ basic needs. The current staffing standard in federal law – "sufficient staff" to meet residents’ needs – is too vague to be enforceable. The result is severe and chronic understaffing, which leads to poor care for residents as well as abuse and neglect.
While some abuse and neglect, including resident-on-resident abuse, occur because facilities employ too few workers to oversee and provide care to residents, other abuse and neglect occur because staff have too little training and too few skills to understand and know how to deal appropriately with residents. Nurse aide training requirements enacted in the 1987 nursing home reform legislation mandated a minimal 75 hours of training. These requirements are clearly inadequate to meet the needs of today’s nursing home residents, who are more frail and disabled and have greater health care needs than ever. Aide training requirements need to be strengthened, improved, and enforced.
Thank you for the opportunity to submit this statement for the record.
The Center for Medicare Advocacy, Inc. is a private, nonprofit organization that provides education, analytical research, advocacy, and legal assistance to help older people and people with disabilities obtain needed health care. Our primary focus is on issues concerning the federal Medicare program.
Toby S. Edelman
If you need to contact us about this matter, please click here for a free online consultation.
