A special report by the
ST. LOUIS POST-DISPATCH
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."
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.