Regulators are losing war against neglect -
if they're fighting at all 
Articles Courtesy of the
By Phillip O'Connor
Copyright 2002
A special report by the
Posted 10/16/2002

* Weak laws, tight budgets, untrained staffs and lobbying from the nursing home industry all hamper government officials' ability to protect residents.

There is a veritable army of government regulators who are supposed to protect the elderly in America's nursing homes.

But scores of federal reports and academic studies make clear that these people are losing the war and, in some cases, not even fighting the battle.

The reports detail chronic problems: state investigators failing to ensure safe care; professionals required by law to report abuse but not doing so; and the inability of federal regulators to do much, if anything, about it.

The front-line troops are state surveyors whose job is to make sure nursing homes provide the most basic care to residents -- such as feeding them, giving them fluids and making sure they are turned every few hours to prevent bedsores.

Whether conducting annual inspections or responding to thousands of complaints made to hot lines, the surveyors are central to government efforts to protect the health and ensure the well-being of the nation's 1.8 million nursing home residents.

But often, the surveyors fail to prevent harm. In the worst cases, they fail to identify wrongful deaths from preventable causes such as malnutrition, dehydration and bedsores.

A lack of trained staff, ineffective regulations and fines, industry lobbying and tight budgets contribute to state enforcement problems.

"I am concerned that there may be cases where people's lives have been shortened because of neglect and we don't know about it," said Darrell Hendrickson, who oversees Missouri's nursing home inspection program.

A 1998 report by the General Accounting Office, the investigative arm of Congress, documented that state investigators routinely miss at least half of the most serious violations during inspections, mostly because they lack training.

In one Missouri nursing home, for example, federal surveyors found 24 deficiencies that a team of state surveyors had missed during an inspection conducted about six weeks earlier, including six residents who were malnourished. One resident had lost nearly one-fifth of his body weight, dropping to 93 pounds, and developed severe pressure sores that were being inappropriately treated.

The Missouri Department of Health and Senior Services employs about 170 surveyors who work in teams to inspect the state's more than 500 nursing homes every 12 to 15 months.

In 2000, they also responded to more than 7,000 complaints against nursing homes.

The Illinois Department of Public Health employs about 200 nurses as surveyors to perform similar duties in the state's 1,200 nursing homes.

A spokesman for the American Healthcare Association called efforts to regulate the industry subjective and unevenly enforced across the country. Inspectors focus more on nursing home procedures than on the care that residents receive, said Alan DeFend, a vice president of the trade group, which represents 12,000 nursing homes.

"Auditors" deal with doctored data

David Hoffman, an assistant U.S. attorney in Philadelphia, served as chief counsel for Pennsylvania's Department of Aging. He says he saw serious problems in that state's system for protecting nursing home residents.

"We often put too much belief in the ability of the state inspectors," Hoffman said. "In most states, they are not investigators, they aren't trained to gather evidence, to build a criminal case because they're, in effect, auditors."

State surveyors frequently rely on medical charts to evaluate the quality of care, says Jeanie Keyser-Jones, a professor in medical anthropology at the University of California at San Francisco School of Medicine and a nationally recognized expert in nursing care.

"But it has been documented throughout the country that charts -- especially at substandard homes -- are often doctored, made perfect, falsified to conform with what the inspectors expect to see," Keyser-Jones said.

Research by Keyser-Jones and other government-funded investigations cite scores of cases in which nursing staffs charted that residents had eaten their entire meal when observers recorded that two-thirds or more of the food was left on trays.

"It's vital to proper patient care to accurately record what a patient eats," said Dr. John Morley, chief of St. Louis University's division of geriatric medicine. "But in far too many nursing homes there is often no correlation between what's actually eaten and what is charted. That's dangerous."

The children won out

Many nursing homes offer high quality care and employ staff that are conscientious and caring.

But Missouri officials readily acknowledge vast failings in their ability to protect nursing home residents from neglect.

Part of the problem was the program's placement for more than two decades in the Department of Social Services, which also oversaw child protection programs.

Last year, a reorganization moved nursing home inspections into the renamed Department of Health and Senior Services.

At their final meeting as a part of the Department of Social Services, a former director apologized to Division of Aging officials for their second-class status within the department.

Chris Wiltse, who supervises investigators for the 230 homes in the St. Louis region, recalls the director saying: "When it came down to choosing, 'Do we spend money on children or the elderly?' children won out every time."

The "roller coaster syndrome"

Nursing home regulators in Missouri and many other states bemoan a lack of enforcement tools and flaws in the state's system for assessing fines. These allow homes to escape monetary penalties or to have them substantially reduced, the inspectors say.

These same officials also complain about a "roller coaster syndrome" in enforcement.

Under Missouri law, nursing homes can avoid all fines and penalties if they correct reported violations by the time the home is reinspected. Often homes pass the second inspection by submitting plans for correcting a violation, only to be cited again for the same problem the next time.

Last year, four elderly women died from overheating in a University City nursing home when temperatures in the building soared into the high 90s. Employees failed to move the residents out of hot rooms despite repeated warnings from firefighters and paramedics over several days.

The state sought $143,000 in civil fines but collected nothing. The home avoided paying $133,000 by submitting a correction plan. A judge threw out the remaining $10,000 fine on a technicality. The state is appealing the ruling.

Missouri has little authority to address homes with repeated care violations. Legislation that would have allowed for increased fines and greater latitude to revoke a nursing home's license failed in the last session of the Missouri Legislature.

Even when fines are assessed in cases of death, the penalty can be negligible.

Responding to a complaint to the state's elder abuse hot line, Missouri investigators in 1995 found more than a dozen residents in a Boone County nursing home suffering from improperly treated bedsores. Two women later died. A jury in 1998 found the nursing home and the administrator guilty on two counts each of felony neglect. The court fined the home $250 per death and the administrator $500 per death.

Diana Love, executive director of the Missouri Board of Nursing Home Administrators, said license revocations are rare, even in cases involving death from neglect or poor care. In most cases, administrators might be put on probation or have their licenses temporarily suspended.

In the University City case, the state revoked the license of the administrator, Teresa Johnson. She has appealed.

Big workload, high stress

About one-third of all nursing home complaints to Missouri's elder abuse and neglect hot line flow into a rabbit warren of offices on the fifth floor of the Wainwright Building in downtown St. Louis.

On a good day, eight people are there to respond to the hot line complaints that come spitting out of the office fax machine.

Each inspector juggles 40 to 50 investigations at any one time. Often, paperwork is put off so that inspectors can concentrate on investigating the most serious allegations within 24 hours of being reported.

Uncooperative nursing home employees and disoriented residents can make it difficult to prove allegations of abuse or neglect.

Investigators can substantiate about only 30 percent of complaints made to the hot line, even in cases involving broken bones or emergency room visits.

"That's probably one of the biggest frustrations of the staff," said Wiltse, who supervises the St. Louis-area investigators. "They know or have that gut feeling that something happened but, for whatever reason, they can't get the staff to talk or the doctor to give information that gives us enough to substantiate the report."

In most cases, regulators never see a death certificate, examine a body or know the cause of death; if there's a problem, they don't know enough to look into it.

Only since August have Missouri inspectors begun to review state death data to see if suspicious patterns appear.

The heavy workload and high stress frequently contribute to burnout among inspectors. Recruitment is a challenge, with few people willing to accept a position that requires long hours at odd times of the day or night for an average salary of about $35,000 a year.

"The last time we advertised, we didn't get a single response," Wiltse said. "We're not everybody's favorite person. From the industry side we're doing too much, and from the advocate side we're never doing enough."

As of late last month, eight of the 43 inspector positions in the St. Louis office were vacant.

Many cases are hard to prove

While inspectors frequently cite facilities for problems with bedsores, proving malnutrition or dehydration is much more difficult, Wiltse said.

"If we walk into a room and the water pitcher wasn't within reach, that's not a good sign, that's a flag, but that's not proof the person is dehydrated," Wiltse said. "Those are harder observations to make. You have to look at that over a period of time to try to prove that, not just a one-time snapshot."

Adding to the problems of inspectors, Wiltse said, doctors often are uncooperative, medical records may be fabricated and death certificates often fail to accurately identify what a resident died from.

Hendrickson, who oversees the state inspection program, said surveyors need better training in detecting neglect.

"They don't spot the important things," Hendrickson said. "They might get a piece, but they don't put the pieces together."

He said also that the state should consider changing the statutory definition of neglect.

"As it is now, I have to prove that they not only neglected a person, but that they knew they were doing it," Hendrickson said. "That's a pretty high standard."

Opinions differ in Illinois

Unlike in Missouri, Illinois public health officials said they are satisfied with their nursing home inspection program and they do not consider neglect of residents to be a significant problem.

"We don't have any information to suggest it would be an issue in Illinois," said Bill Bell, deputy director for the Illinois Department of Public Health's Office of Health Care Regulation.

But some Illinois inspectors say they feel under assault by nursing home owners and their own bosses, according to thousands of pages of grievance documents reviewed by the Post-Dispatch.

Several accuse department supervisors of ordering them to ignore violations they find in some nursing homes. Those who refuse are disciplined, said Debbie Reed, president of the Illinois Nurses Association union local that represents the state's inspectors.

"The surveyors can't go in and tell the truth about what's going on," Reed said. "Not if they want to keep their jobs."

In other cases, the state disciplined inspectors after nursing homes wrote letters that accused them of unprofessional conduct, even though witnesses offered conflicting testimony.

"(Inspectors) end up being disciplined for something they more than likely haven't done," Reed said.

"What they're effectively doing is closing down the surveyors," Reed said. "These nurses are not willing to put their jobs on the line and jeopardize their future. The only nurses out here being successful right now in monitoring are the ones who look the other way."

Bell denied the allegations, which he blamed on disgruntled employees. He declined to comment further, saying he could not discuss employee matters.

It seems hard to get action

Most states rely on posted notices in nursing homes to make people aware that a complaint system exists. Some states don't have toll-free telephone numbers to accept complaints, and some that do don't monitor them all the time.

Others have complained about a lack of e-mail access, a shortage of non-English-speaking staff or of being bounced from one state agency to another. Many who filed complaints said they never were notified of the results.

When Martha Jessup, a nursing instructor at St. Louis Community College at Meramec, suspected that the staff at a Chesterfield nursing home had injured her father, she called the state's elder abuse and neglect hot line for help. She did the same when he suffered a broken leg, again when he lost a great deal of weight and again when he died.

State records show that in every instance, the state was unable to verify her complaint. In at least three instances, the investigation consisted of nothing more than a phone call to the nursing home. In no instance did the state take action against the home.

Only after she asked state lawmakers to intervene did Jessup get a response from Division of Aging officials. Jessup eventually reached a sealed settlement with the nursing home.

During 10 years as a nursing home chaplain in the St. Louis area, Ray Miller said, he would call the hot line asking the state to investigate mistreatment of residents.

On two occasions he met with state officials to express his concerns, including one case that resulted in death. Despite giving names, dates and other details, he saw no results, Miller said.

"You try to identify the authority that can get something done and you report it," Miller said. "If nothing is done, you report it again. After two or three times reporting it and nothing gets done, you get frustrated."

The agencies and professionals required by state law to report elderly neglect and abuse rarely do so, said Tom Sneddon, the district attorney for Santa Barbara County in California.

Sneddon said he had to threaten to prosecute the state licensing agency for failing to report incidents before the agency relented.

By the time criminal investigators are alerted to the possibility of a crime, crucial evidence or witnesses may have disappeared, making it impossible to prove such cases.

Many of the nation's nursing homes -- even those operating on tight budgets -- provide professional, humane care for their elderly residents. And many of the people who work in those homes -- often for near-poverty level wages -- treat their jobs as a calling to ease the pain and safeguard the dignity of their charges.

Yet those who don't do their jobs escape detection and punishment.

"Something needs to be done that is effective and will result in improvement of quality of care," said Candace Heisler, who served as an assistant district attorney in San Francisco for 25 years. "Look at the history of regulatory agencies going into nursing homes. When a home is brought up on violations, was the issue resolved quickly and effectively? Sadly, the answer is no."