Inadequate
laws are blamed for lack of prosecution
in
heat-related deaths
Articles Courtesy of
the STL.TODAY.com |
By Andrew Schneider and Phillip O'Connor
Copyright 2002
A special report by the
ST. LOUIS POST-DISPATCH
Posted 10/17/2002
When four elderly women baked to death
from soaring temperatures in a University City nursing home in April last
year, public officials expressed outrage and vowed to take swift action
against those responsible.
They quickly levied fines against Leland
Health Care Center, ordered investigations and called for criminal charges.
But more than 18 months later, the fines
against the former owners and the operator of the nursing home have been
slashed by four-fifths. No one stands charged in the deaths.
The case illustrates how neglect investigations
can be undercut by weak laws and a lack of coordination among investigators,
medical examiners and prosecutors. In the Leland case, this lack of laws
and coordination has devolved into finger-pointing all around over who
should have done what.
St. Louis County Prosecuting Attorney Robert
McCulloch and U.S. Attorney Ray Gruender sought criminal indictments. But
the county and federal grand juries refused to indict.
Missouri Attorney General Jay Nixon gathered
hundreds of pages of documents detailing a history of complaints against
the nursing home. His office obtained affidavits from several involved
during the two days when the four women died in 98-degree heat on the top
floor of the three-story brick building.
But Nixon said he could do nothing.
The three senior lawmen all said the lack
of laws addressing neglect prevented them from pursuing convictions in
the Leland deaths.
"If there were minimum requirements for
staffing, if there were broader neglect laws, it would make it a much clearer
case in a situation where you can say, 'You're not providing adequate care,'"
McCulloch said.
"There is a built-in defense that nursing
homes have. All these operators have to say is, 'We did what we could.'
If there are no mandated standards that define precisely what they should
do and precisely how many people they must have to do it, then there is
really little we can do."
Gruender said: "The federal laws that are
available to us are very narrow. They really go more towards fraud than
abuse or neglect."
One of the laws available to Gruender is
the False Claims Act, which other federal prosecutors have used to win
convictions in nursing home neglect cases.
Under the act, Gruender would have had
to prove that the corporation submitted a reimbursement request to Medicaid
or Medicare for a service it knew it hadn't provided, such as air conditioning.
"If, hypothetically speaking, they didn't
receive payment or paid it back, then it would be hard to show a federal
crime," Gruender said.
The nursing home's attorney, Harvey Tettlebaum,
also was familiar with the act.
Immediately after the deaths, he advised
his client to reimburse the government any money the home had received
for the women's care during the period when the air conditioning wasn't
working. And that's what the home did.
"I advise all my clients to do that," Tettlebaum
said.
A jurisdictional issue
Nixon said Missouri needs meaningful laws
to allow prosecution for neglect. But he has other limitations when it
comes to pursuing criminal charges.
"We are forbidden to prosecute any case
without the permission of the county attorney," Nixon said. "We felt that
what happened at Leland was tragic and too important not to be pursued.
We told McCulloch's office that we were willing and eager to take the case,
and we heard nothing back."
Nixon wrote in a letter to McCulloch on
May 2: "Our Medicaid Fraud Control Unit has developed a high level of skill,
expertise and resolve in the investigation and prosecution of abuse and
neglect cases arising out of nursing homes."
The attorney general said, "We sent them
a great deal of information, and again we heard nothing."
McCulloch said the law that limits jurisdiction
to his county office is "just fine and should not be changed."
"The attorney general can and should investigate
Leland and any other case they want as thoroughly as they can," McCulloch
said. "And once that investigation is done, their responsibility is to
turn it over to the local prosecutors. Let them bring me the case."
The agency which licenses nursing homes
launched an investigation but had its own obstacles.
State inspectors reported that, after the
deaths, the nursing home employees had hired lawyers and initially had
refused to cooperate.
Missouri statutes don't require nursing
home workers to talk to state employees in such cases.
Earl Carlson, executive director of the
Missouri Health Care Association, the lobbying group for many of the state's
nursing homes, allows that the state has a responsibility to provide oversight
and correct wrongdoing. But he said stronger laws are not needed.
"They have a wide variety of penalties
available, including removal of licensure and closing a building," Carlson
said. "To condemn an industry for those few bad people is wrong."
Carlson said expensive fines would only
divert more money from resident care.
"Two difficult areas"
The editorial page of this newspaper, radio
talk shows and nursing home advocates who picketed McCulloch's office all
strongly criticized the prosecutor for failing to get an indictment in
the Leland deaths.
"The grand jury had everything available,
not only statements from police, paramedics and people from the state Division
of Aging, but the actual live people involved as to what was said and who
was where," McCulloch said.
The Post-Dispatch sought, but failed, to
get a judge to release tapes of the grand jury proceedings, and McCulloch
said there was "very little" that he could discuss. But he did offer comments
on what he called "two difficult areas."
"There were no post-mortem examinations,
and there was very little detailed evidence from the medical examiner,"
he said.
"In cases like this, the medical examiner
would determine it was a homicide and we would then determine if it was
criminal," McCulloch said. "But these deaths were never determined to be
homicides because neither the medical examiner nor her staff ever examined
the bodies."
St. Louis County Medical Examiner Mary
Case, who ruled all four deaths were caused by hyperthermia, answered:
"We don't do autopsies on heat-related deaths. If someone wanted to prosecute
someone in this case, it would have nothing to do with whether autopsies
were done."
The other difficult area, McCulloch said,
involved conflicting testimony from emergency workers who repeatedly responded
to Leland during those deadly 48 hours.
"Some of the firefighters and paramedics
testified to something very different from the statements they made before
they went before the grand jury. That just put this matter in a whole different
light," he said.
McCulloch didn't have to take the case
before a grand jury to get an indictment.
"I could have just done it, but we usually
take complex cases involving deaths before a grand jury, so that's the
way I chose to go," the county prosecutor said.
Affidavits from the first responders, obtained
by the Post-Dispatch, present a vivid account of their actions and concerns
at the horseshoe-shaped, orange-brick building as each person died or was
rushed to a hospital.
The affidavits documented that two firefighters
and a paramedic measured the room temperatures at 95 degrees and 98 degrees
and warned the nursing home staff that the air conditioning had to be turned
on.
Told that the air conditioning was broken,
firefighters and paramedics spelled out in their affidavits why, when and
to whom they passed the word that the 50 residents on the broiling third
floor had to be moved to the cooler ground level. Twice, the nursing home's
staff refused, according to the affidavits.
The dry, formal language used in such reports
does not conceal the anger and frustration of firefighters, police and
medics as the death toll rose over the two days.
McCulloch said he could not violate the
secrecy of the grand jury by discussing the specific inconsistencies in
what the emergency workers said.
Maj. Charles Adams of the University City
Police Department said last week: "This is the first I've heard about conflicting
comments." He said any other comments on the case should come from McCulloch.
The inspector general's office of the federal
Health and Human Services Department has the authority and says it has
the interest to investigate Leland.
"Our office has been concerned about Leland's
deaths since they occurred," said Kimberly Brandt, a special counsel for
the inspector general. "We had to wait until both the county prosecutor
and the U.S. attorney failed in their attempts to get their grand juries
to indict. That has happened now, and our investigators have taken on the
case."
Brandt declined to discuss their investigation.
Knocking down civil penalties
Efforts to impose strong financial penalties
were also blocked by law.
Missouri sought a total of $143,000 in
fines against the home, but Leland paid nothing to the state.
The nursing home took advantage of a state
law designed to give nursing homes an incentive to correct problems quickly.
Under the law, the nursing homes can avoid fines by submitting a document
that details how they plan to correct the problems that led to the citations.
"Civil penalties are watered down to nothing.
There's no teeth in the law," said Nixon. "You've got people running businesses
to make money, so one of the ways you can deal with them is to take some
of that money if they don't follow the law. If all they have to do is clean
up their mess within 30 days after the mess happens, it is no deterrent."
The state also sought to revoke the nursing
home's license, a move that would have led to its closing. But the owner,
Morris Esformes, sold the building before the June 14, 2001, revocation
date.
Federal officials fined Leland $66,950
but after an appeal settled for $43,517.
Regulators also employed another provision
in state law that allows additional fines of $100 a day multiplied by the
number of beds in a nursing home, up to a maximum of $10,000. But a judge
threw out the state's request for the $10,000 fine after prosecutors failed
to include the number of beds in court filings.
Missouri Sen. Christopher "Kit" Bond has
repeatedly hammered at the Centers for Medicare & Medicaid Services,
which funds the care of residents, and at the inspector general for the
Health and Human Services Department, for the problems in state nursing
homes.
The Leland case was high on the senior
Republican's list of concerns.
"I remain gravely disappointed that four
elderly women died in the state of Missouri and no one has been held responsible,"
Bond said. "It is simply appalling that the matter has been dismissed with
less than $43,000 in fines. What sense does it make to say that only broken
air conditioners are to blame?
"Sending corporate titans up the river
for cooking the books while excusing nursing home operators and others
with fines and a slap on the wrist just doesn't square with me," Bond said.
"As the Leland tragedy showed, folks are not just suffering, they're dying
from neglect."
A GLOSSARY
Abuse - Willful intent to cause
harm. Abuse may be resident-to-resident or staff-to-resident harm.
Bedsore/decubitus ulcer - An inflamed
lesion of the skin or internal mucous tissue caused by pressure or friction.
Pressure sores are classified in stages, with Stage 1 being a reddening
and irritation, to the most severe, Stage IV, which can have tissue eaten
away to the underlying bones and organs.
Civil Money Penalty - A federal
fine imposed on facilities for noncompliance.
Citation - A written notification
of a violation of state or federal nursing home regulations detected by
investigators.
Complaint investigation - An on-site
investigation of specific allegations that a nursing home failed to comply
with federal or state requirements.
Neglect - Failure to provide life-sustaining
care including food, liquid and treatment of wounds.
Ombudsman - Paid or voluntary staff
that investigate nursing home complaints from residents and their families
and act as advocates addressing concerns of nursing home residents. Many
ombudsman programs are associated with state government departments or
boards of aging.
Skilled Nursing Facility - A nursing
home that meets the requirements for Medicare certification. Also the term
used by most states to define the nursing home type that is licensed to
provide the highest level of care.
Survey - Inspection done by regulators
to ensure that nursing homes are complying with state and federal laws.
Surveyor - Regulator who conducts
nursing home inspections and investigates complaints.
Source: Center for Medicare and
Medicaid Services, law dictionaries.
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