[Senate Hearing 107-401]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-401
 
                  SAFEGUARDING OUR SENIORS: PROTECTING
                  THE ELDERLY FROM PHYSICAL AND SEXUAL
                         ABUSE IN NURSING HOMES

=======================================================================

                                HEARING

                               before the

                       SPECIAL COMMITTEE ON AGING
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             WASHINGTON, DC

                               __________

                             MARCH 4, 2002

                               __________

                           Serial No. 107-20

         Printed for the use of the Special Committee on Aging






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                       SPECIAL COMMITTEE ON AGING

                  JOHN B. BREAUX, Louisiana, Chairman
HARRY REID, Nevada                   LARRY CRAIG, Idaho, Ranking Member
HERB KOHL, Wisconsin                 CONRAD BURNS, Montana
JAMES M. JEFFORDS, Vermont           RICHARD SHELBY, Alabama
RUSSELL D. FEINGOLD, Wisconsin       RICK SANTORUM, Pennsylvania
RON WYDEN, Oregon                    SUSAN COLLINS, Maine
BLANCHE L. LINCOLN, Arkansas         MIKE ENZI, Wyoming
EVAN BAYH, Indiana                   TIM HUTCHINSON, Arkansas
THOMAS R. CARPER, Delaware           PETER G. FITZGERALD, Illinois
DEBBIE STABENOW, Michigan            JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri              CHUCK HAGEL, Nebraska
                    Michelle Easton, Staff Director
               Lupe Wissel, Ranking Member Staff Director

                                  (ii)

  





                            C O N T E N T S

                              ----------                              
                                                                   Page
Opening Statement of Senator John Breaux.........................     1
Prepared statement of Senator Larry E. Craig.....................     4
Perpared statement of Senator Harry Reid.........................     4
Prepared statement of Senator Debbie Stabenow....................     5
Prepared statement of Senator Tim Hutchinson.....................     5
Statement of Senator Ron Wyden...................................     6
Statement of Senator Herb Kohl...................................     7
Statement of Senator Blanche Lincoln.............................     8

                                Panel I

Bruce Love, Son of physical abuse victim Helen Love, Mill Creek, 
  CA.............................................................     9
Barbara Becker, Daughter-in-law of physical abuse victim Helen 
  Straum-kamp, Evansville, IN....................................    17
Michael Peters, Esq., Counsel for rape victim Jane Doe, Orlando, 
  FL.............................................................    23

                                Panel II

Leslie Aronovitz, Director, Health Financing and Public Health 
  Issues, Health,  Education and Human  Services Division,  
  General Accounting Office, Washington, DC......................    34
Mark Malcolm, Coroner, Little Rock, AR...........................    52
Charles Fuselier, Sheriff, St. Martinville, Louisiana on behalf 
  of the National Sheriffs' Association..........................    65
Henry Blanco, Board Member, National Association of Adult 
  Protective Services Administrators, Phoenix, AZ................   116
Delta Holloway, RN, Boise, ID, on behalf of American Health Care 
  Association....................................................   124

                                APPENDIX

Statement submitted by Deborah Bradford..........................   143
Letter from Carol Brown..........................................   154
Statement of W. Garrett Boyd.....................................   156
Statement from Cathy Newman......................................   158
Statement of Bette Vidrine.......................................   160
Statement of Cassie Tracy........................................   164
Letter and additional material submitted by Robert Marshall, 
  Delaware State Senate..........................................   167
Statement of the National Association of Orthopaedic Nurses......   173
Testimony from Toby Edelman, Center for Medicare Advocacy........   178

                                 (iii)

  






  SAFEGUARDING OUR SENIORS: PROTECTING THE ELDERLY FROM PHYSICAL AND 
                     SEXUAL ABUSE IN NURSING HOMES

                              ----------                              


                         MONDAY, MARCH 4, 2002

                                       U.S. Senate,
                                Special Committee on Aging,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1:32 p.m., in 
room SD-628, Dirksen Senate Office Building, Hon. John Breaux 
(chairman of the committee) presiding.
    Present: Senators Breaux, Kohl, Wyden and Lincoln.

       OPENING STATEMENT OF SENATOR JOHN BREAUX, CHAIRMAN

    The Chairman. The committee will please come to order. Good 
afternoon to everyone. We thank all of our guests for being 
with us. I also want to acknowledge our colleagues who are here 
for what I consider to be a very important hearing this 
afternoon. I thank all of our guests in the audience and 
particularly thank the witnesses, who we will introduce in just 
a moment, for their testimony.
    Today, we will examine a subject that is difficult for most 
of us to fathom, and that is physical and sexual abuse of 
individuals who reside in nursing homes. It is a subject that 
really should not exist. I genuinely wish that there was no 
issue of physical and sexual abuse in nursing homes to 
investigate at all.
    Sadly, this investigation is another chapter in a long 
history for too long of abuses and problems in nursing homes. 
We as a nation must not tolerate abuse of our senior citizens 
in any form nor in any place. The Special Committee on Aging 
spent 14 years from way back in 1963 to 1977 investigating 
nursing home care. Other chairmen of this Special Committee on 
Aging and other committees in the Congress focused their 
attention on this particular problem after 1977.
    We continue the work that began in 1998. Now, in the year 
2002, 40 years have passed without a clear determination on the 
conditions of nursing homes as far as safety for our senior 
citizens.
    Let me say up front and at the beginning that this hearing 
is not an indictment in any way of the entire nursing home 
industry. I recognize, this committee recognizes, the Congress 
recognizes, that there are many very fine nursing home 
facilities in this country that provide critical quality health 
care that is needed and necessary, and that also provides those 
quality care provisions in a very safe manner.
    However, the prevalence of abuse highlighted by this 
investigation has forced me to come to grips with the fact that 
our nation's public policy has been unable to adequately ensure 
the safety of our seniors in nursing homes.
    This prompts me once again to look toward promoting and 
supporting other long-term care alternatives to nursing home 
care. This becomes all the more critical as the baby boom 
generation draws closer to senior citizen status. Today, the 
focus is on the response of law enforcement and other agencies 
to physical and sexual abuse in nursing homes.
    Our committee asked the General Accounting Office, the 
investigative arm of the Congress, to investigate and determine 
how law enforcement responds to these crimes after we received 
complaints of confusion about where to make these complaints of 
abuse and complaints about which agency was responsible for 
investigating these allegations of abuse.
    The General Accounting Office will share its findings in 
the report that I am releasing today. GAO's report not only 
addresses law enforcement's response to reports of physical and 
sexual abuse, but also finds the problem is even greater, that 
there is a pervasive lack of coordination among all the 
agencies that are charged with the responsibilities of 
protecting our seniors. By this, I mean law enforcement, social 
services, and also government.
    To illustrate this point, I had a chart prepared that 
reflects the myriad of agencies involved in responding to the 
claims of physical and sexual abuse in nursing homes.
    Immediately it becomes very clear, in my opinion, that 
while many agencies have jurisdiction, all too often no agency 
has the ultimate responsibility to investigate the allegations 
of physical and sexual abuse in nursing homes.
    When everyone is in charge, it is clear that no one is in 
charge. We need to know that seniors in nursing homes are 
treated like everyone else when a crime does occur. We need to 
know that trained criminal investigators are notified 
immediately and can provide the evidence required for any 
necessary prosecutions.
    We cannot continue to provide a system that discriminates 
against seniors with a bureaucratic reporting system that 
leaves abusive crime scenes stale and incapable of forensic 
investigation. A crime is a crime no matter where it is 
committed. Whether it is on a street corner in an urban city, 
or whether it is in a nursing home, it matters not. There is a 
crime and somewhere there is a criminal.
    One last point I would like to make relates to the 
International Association of Chiefs of Police. This committee 
made repeated attempts to invite this association to represent 
the interests of police officers and detectives throughout the 
Nation with regard to how nursing home crimes are addressed.
    I recognize that there are strong elder abuse units in 
police departments throughout the Nation that are doing 
outstanding work in this area. My own State of Louisiana is 
represented by Sheriff Charlie Fuselier, who is doing a great 
job in this particular area and will tell the committee about 
it.
    However, I would like to read into the record a portion of 
the letter that I received from the International Association 
of Chiefs of Police declining this committee's invitation to 
participate in the hearing today, and it states the following:
    ``The IACP membership has not yet taken a formal policy 
position on the issue. Let me assure you that this is not an 
indication of the level of importance it believes this issue 
merits.''
    That is simply, to me, unacceptable for the national 
association representing the police chiefs in their law 
enforcement responsibilities. I believe the letter concisely 
makes the point of this hearing: too many police departments do 
not have abuse of seniors in nursing homes anywhere on their 
radar screen. Out of sight, out of mind is not acceptable. I 
think it is clear that we have much work to do to ensure that 
they are better trained and sensitized to the crimes against 
seniors that occur in institutions.
    Moreover, it is essential that they not be treated 
differently from anyone else outside institutions or treated 
differently because of their age.
    Before we introduce our first panel of witnesses, I'd like 
to recognize our colleagues on the Aging Committee. First, 
Senator Ron Wyden.
    [The prepared statements of Senator Breaux, Senator Craig, 
Senator Reid, Senator Stabenow, and Senator Hutchinson 
follows:]

               Prepared Statement of Senator John Breaux

    Good morning. I would like to thank all of you, especially 
my fellow members, for attending today's investigative hearing. 
I would also like to thank the Committee's Ranking Member, 
Senator Larry Craig, for his support throughout this 
investigation. Finally, and most importantly, I would like to 
thank the witnesses for being here today. Your testimony will 
assist the Committee greatly in determining how best to address 
the vital issues raised today.
    Today, we will examine a subject that is difficult for any 
of us to fathom - physical and sexual abuse in nursing homes. 
It's a subject that should not exist, and I genuinely wish that 
there was no issue of physical and sexual abuse in nursing 
homes to investigate at all today. Sadly, this investigation is 
but another chapter in a long history - far too long - of 
abuses and problems in nursing homes. We as a country must not 
tolerate abuse of our senior citizens in any form.
    The Special Committee on Aging spent 14 years from 1963 to 
1977 investigating nursing home care. Other Chairmen of the 
Special Committee on Aging and other committees focused 
attention on the problems after 1977. Senator Grassley and I 
continued that work beginning in 1998. Now, in 2002, 40 years 
have passed without a determination that nursing homes are safe 
for seniors.
    Let me say upfront that this hearing is not an indictment 
of the entire nursing home industry. I recognize there are many 
fine nursing homes in this country that provide quality care 
that is safe from abuse. However, the prevalence of abuse 
highlighted by this investigation has forced me to come to 
grips with the fact that our nation's public policy has been 
unable to insure the safety of our seniors in nursing homes. 
This prompts me once again to look toward promoting and 
supporting other long-term care alternatives to nursing home 
care. This becomes all the more critical as the Baby Boomers 
draw closer to senior citizen status.
    Today, the focus is on the response of law enforcement and 
other agencies to physical and sexual abuse in nursing homes. 
The Committee asked the Government Accounting Office to 
investigate and determine how law enforcement responds to these 
crimes after we received complaints of confusion about where to 
make complaints of abuse and complaints about which agency was 
responsible for investigating abuse. GAO will share its 
findings in the report I am releasing today.
    GAO's report not only addresses law enforcement's response 
to reports of physical and sexual abuse in nursing homes but 
also finds the problem is even greater - there is a pervasive 
lack of coordination among all the agencies charged with 
responsibilities of protecting our seniors - by this I mean, 
law enforcement, social services and government. To illustrate 
this point, I had a chart prepared that reflects the myriad of 
agencies involved in responding to claims of physical and 
sexual abuse in nursing homes. Immediately, it becomes clear 
that while many agencies have jurisdiction, all too often, no 
agency has ultimate responsibility to investigate allegations 
of physical and sexual abuse in nursing homes.
    We need to know that seniors in nursing homes are treated 
like anyone else when a crime does occur. We need to know that 
trained criminal investigators are notified immediately and can 
provide the evidence required for any necessary prosecutions. 
We cannot continue to provide a system that discriminates 
against seniors with a bureaucratic reporting system that 
leaves abuse scenes stale and incapable of forensic 
investigation.
    One last point that I'd like to make relates to the 
International Association of Chiefs of Police. This Committee 
made repeated attempts to invite this association to represent 
the interests of police officers and detectives throughout the 
nation with regard to how nursing home crimes are addressed. I 
recognize that there are strong elder abuse units in police 
departments throughout the nation that are doing exemplary work 
in this area. However, I would like to read into the record a 
portion of the letter I received from the national association, 
declining the Committee's invitation to participate in the 
hearing today. It states the following:
    ...the IACP membership has not yet taken a formal policy 
position on the issue. Let me assure you that this is not an 
indication of the level of importance the IACP believes this 
issue merits....
    I believe this letter concisely makes the point of this 
hearing. Too many police departments do not have abuse of 
seniors in nursing homes anywhere on their radar screen. I 
think it is clear that we have much work to do to ensure that 
they are better trained and sensitized to the crimes against 
seniors in institutions. Moreover, it is essential that they 
not be treated differently from anyone else outside 
institutions or treated differently because of their age.
    Before introducing the witnesses, I would like to recognize 
other Senators for any opening remarks.
                                ------                                


               Prepared Statement of Senator Larry Craig

    We are here this morning to examine the serious and growing 
problem of physical abuses of our nation's most vulnerable 
citizens. I want to begin by thanking Senator Breaux for 
convening this very important investigative hearing. We began 
this committee's investigation on Elder Abuse last year, 
including a discussion of abuses that happen in the elder's own 
home. I am pleased to see that this committee is continuing to 
explore different aspects of the problem, including instances 
of abuse that occur in nursing homes.
    The challenges we face in remedying nursing home abuse are 
formidable. Employees of nursing homes with the legal duty to 
report suspected occurrences of abuse often fail to report to 
appropriate state and local agencies, including law 
enforcement. When cases are reported, there is often a long 
delay. Evidence is allowed to perish. When prosecutors finally 
get these cases, they have trouble acquiring reliable testimony 
from victims and other witnesses.
    I'm hoping to hear today how existing state and local 
efforts to combat abuse in nursing homes might be enhanced by 
more collaborative approaches. In the state of Idaho, we have 
interagency protocols related to elder abuse responses both at 
the state and local level that have been quite effective. These 
formal protocols have the signatures of top officials in Adult 
Protection, the Ombudsman program, survey agencies, law 
enforcement, and prosecutors, demonstrating their commitment to 
work together on these cases. The protocols require specific 
reporting, facilitate collaborative investigations, and allow 
the exchange of client information between professionals acting 
on behalf of victims.
    Additionally, existing federal resources should be better 
targeted to provide technical training in the identification, 
investigation, and prosecution of crimes perpetrated against 
the elderly in nursing homes and in the community. A high level 
of competence and expertise is necessary to effectively take on 
these very difficult cases.
    I look forward to hearing the testimony today.
                                ------                                


                Prepared Statement of Senator Harry Reid

    Good afternoon Chairman Breaux and Ranking Member Craig.
    The physical and sexual abuse of seniors is an unpleasant 
issue--but we cannot afford to look the other way and pretend 
that this problem does not exist. However unthinkable such 
crimes against vulnerable seniors are, they really do occur. 
They are not isolated incidents--and the number of victims will 
only continue to increase as our population ages--unless we 
take effective steps to prevent abuse.
    Certainly we must make sure that crimes against the elderly 
are reported and those responsible are prosecuted. Even more 
importantly, we need to do everything we can to prevent abuse 
before it happens.
    For the past several years, Senator Kohl and I have focused 
our efforts on protecting our most frail and vulnerable seniors 
from workers with criminal backgrounds and known histories of 
abuse. We are the sponsors of the Patient Abuse Prevention Act, 
legislation that would require all long-term care facilities to 
conduct criminal background checks on potential employees. The 
Patient Abuse Prevention Act would also create a national 
registry of abusive workers. This registry would give long-term 
care facilities the ability to weed out workers who are known 
abusers. We need a national registry so offenders cannot 
continue to cross state lines and find employment in new 
facilities where they may continue to prey on the elderly.
    Our bill is a culmination of several years of work on this 
issue, including numerous hearings in this committee. It is an 
inexpensive, common-sense proposal that we are confident will 
prevent many cases of abuse. In fact, a report by the 
Department of Justice revealed that 7 percent of FBI background 
checks on potential long-term care workers uncovered serious 
criminal convictions--including assault, rape and kidnapping. 
Our bill would help nursing homes identify these dangerous 
workers applying for jobs.
    I understand that abuse of seniors is a complex problem and 
our legislation is only part of the solution. But as you listen 
to the stories today, I am sure you will agree that if our bill 
could prevent only one incident of abuse, it would be worth it. 
I urge my colleagues to join Senator Kohl and me in supporting 
the Patient Abuse Prevention Act, and I look forward to 
learning about other ways to protect our nation's seniors.
                                ------                                


             Prepared Statement of Senator Debbie Stabenow

    Chairman Breaux, thank you for convening a hearing today on 
the topic of abuse in nursing homes. While it is difficult for 
us to imagine that anyone would abuse a patient in a nursing 
home, the sad reality is that this abuse does occur. Today's 
hearing will help shed light on this critical issue and perhaps 
help find solutions.
    The General Accounting Office (GAO) study conducted for 
this committee on abuse in nursing homes discovered that it is 
difficult for families to even discuss this issue. GAO 
estimates that much abuse is under-reported. Combine that with 
GAO's findings that there are many barriers to reporting abuse, 
and that many cases are not adequately investigated nor 
prosecuted, and we clearly have a problem. GAO's final 
recommendation is that the Center for Medicare and Medicaid 
Services should work to facilitate the reporting, 
investigation, and prevention of abuse to ensure protection of 
nursing home residents.
    While this is a difficult issue for families to discuss, I 
think it is very important that this committee be an open forum 
so that we can consider the recommendations made by GAO. I also 
look forward to hearing from the other witnesses who will 
provide valuable information. I am strongly committed to ending 
abuse and neglect in nursing homes and I am pleased that our 
committee is taking on this issue that is so important for 
seniors and families.
                                ------                                


              Prepared Statement of Senator Tim Hutchinson

    Mr. Chairman, thank you for holding this critically 
important hearing today. Physical and sexual abuse of any kind 
is abhorrent and intolerable, but it is especially so in 
nursing homes, where vulnerable, unknowing, elderly patients 
are the victims.
    I know that some of the testimony we will hear today tells 
of abuse that is incomprehensible. While these are difficult 
truths to fathom, we must be aware of what is happening and 
work together to convict bad actors and prevent further abuse.
    In my home State of Arkansas, long-term care facilities 
have operated for many years under several state laws aimed at 
reducing the incidence of abuse and improving the quality of 
care. The Adult Abuse Act of 1983, for example, requires 
incident reporting of suspected abuse or neglect of residents. 
The Staffing Requirements for Nursing Facilities and Nursing 
Homes Act of 1999 has enabled Arkansas nursing homes to achieve 
minimum staffing levels of direct care workers that exceed the 
requirements of Arkansas' bordering state neighbors. 
Furthermore, and directly related to today's hearing topic, 
Arkansas nursing homes conduct criminal background checks of 
their direct care staff in compliance with the Mandatory 
Criminal Records Checks for Applicants, Elder Choices Providers 
and Employees Act of 1997.
    As Mark Malcolm, the Pulaski County Coroner, will mention 
in his testimony today, Arkansas also enacted legislation in 
1999 to require all resident deaths to be reported to their 
county coroners. This legislation was strongly supported by the 
nursing home industry and patient groups throughout Arkansas.
    Arkansas nursing homes and legislators have taken steps to 
address this deplorable crime against the elderly. We must 
continue to be vigilant, however, both in Arkansas and 
nationwide, to prevent such abuse.
    I look forward to hearing our witnesses today and thank all 
of them in advance for their testimony.

                 STATEMENT OF SENATOR RON WYDEN

    Senator Wyden. Thank you very much, Mr. Chairman, and let 
me commend you for holding this hearing. This gives us a chance 
to come back to an issue that must not be shunted aside and 
thank you for all of your leadership.
    Mr. Chairman and colleagues, having been involved in this 
issue now for over 20 years, dating back to my days as co-
director of the Oregon Gray Panthers, I can say without a doubt 
that there is a real pattern to how these issues unfold.
    First, there is a government report like the one that is 
being released today that outlines a serious pattern of abuses.
    Second, there are promises made by government and industry 
to clean house and all sides pledge that it is going to be 
different.
    Finally, there is backsliding 6 months or so later and 
going back to something resembling business as usual. Mr. 
Chairman, I think it is so important that this time it be 
different. With your leadership we have that opportunity 
because I believe that a country that does not get this right, 
a county that does not protect the most vulnerable people in 
our nursing homes, is a country that has lost its moral compass 
and that cannot be tolerated.
    Now, for just a moment, I want to talk about what I think 
are the central challenges in front of us as we go forward and 
put in place a reform package, and I want to note, Mr. 
Chairman, that I think the legislation that you are looking 
at--increasing reporting of senior abuse, enforcement of the 
laws--is absolutely critical and it seems to me any reform 
effort has to start with those and other patient protections.
    I would add to it that I would like to see us strengthen 
the so-called watch lists. There is already an effort underway 
that I think is totally inadequate to watchdog the most 
deficient facilities, and I think that watch list ought to be 
strengthened.
    Second, the idea that the Federal Government does not 
require the reporting of instances when there is suspicion of a 
crime, a brutal crime against a senior, is unacceptable. I know 
that there are discussions underway to speed notification of 
that, but I think those at a minimum ought to be part of a 
package of patient protection.
    Third, it seems to me we have to continue to ensure that 
there are the funds necessary to carry out these changes. 
Perhaps the best measure of the short shrift that seniors in 
nursing homes get in our society are the inadequate 
reimbursements in Medicaid facilities, particularly in states 
like mine, that have held costs down, and that has to change as 
well.
    Finally, I would hope that we would also put a focus on 
building up the advocacy networks of friends and relatives and 
ombudsmen, because you can pass laws, Mr. Chairman, by the 
crate full. We can pass one law after another, and if we do not 
have the friends and the relatives and the ombudsmen mobilized 
at the grassroots level, if we do not have that army of citizen 
advocates, all the laws in the world do not ensure that the 
older people in these facilities get the protections they 
deserve.
    Mr. Chairman, it seems to me this time there is a chance to 
break that pattern, the pattern that you and I have seen on 
this committee for years and years. It is a pattern of 
indifference. It goes back to what I have seen since my days as 
Director of the Gray Panthers, and I am determined to work with 
you and our colleagues on a bipartisan basis so this time it 
really is different. Thank you.
    The Chairman. Thank you very much, Senator Wyden. Next, we 
will hear from Senator Herb Kohl. Senator Kohl.

                 STATEMENT OF SENATOR HERB KOHL

    Senator Kohl. Thank you, Mr. Chairman. We appreciate your 
leadership on this committee, and while we also appreciate your 
holding this hearing, it is really sad that it is still 
necessary. Everyone knows, Mr. Chairman, that you have done 
everything in this committee's power to bring this sad 
situation to light and to try to change it.
    This committee has held many, many hearings on problems in 
nursing homes. We have heard stories of people suffering from 
severe malnutrition and dehydration and life-threatening bed 
sores. As we will hear today, in addition to neglect and 
substandard care, our elderly and disabled also have to worry 
about being beaten and even sexually abused.
    Unfortunately, this is not new. Over the past several 
years, we have continued to hear accounts of abuse and neglect 
in nursing homes. When we talk about nursing home residents, 
we're not just talking about nameless faceless people. These 
are our parents and our grandparents, our aunts and our uncles. 
They are sick and disabled, and they depend on nursing home 
staff to protect them and care for them.
    It is important to emphasize that the vast majority of 
nursing home employees work hard and do their best to provide 
the highest quality care. But, as we know, it only takes a few 
abusive staff to terrorize patients and to unfairly portray the 
entire nursing home industry in a negative light.
    As some of you know, I have introduced legislation, co-
sponsored by Senators Breaux and Reid, that would take a major 
step toward addressing this problem. The Patient Abuse 
Prevention Act would create a national registry of abusive 
long-term care workers which will prevent abusers from moving 
from state to state and continuing to find work with vulnerable 
patients. This legislation would also require an FBI criminal 
background check to prevent people with serious criminal 
convictions from working with patients.
    I am pleased that the American Health Care Association and 
the American Association of Homes and Services for the Aging, 
which represent nursing homes and other long-term care 
providers all across the country, are now strong supporters of 
this bill. They recognize that background checks will benefit 
their industry and have worked with my office over the past few 
years to refine the bill. Their suggestions improved the bill 
and demonstrate their commitment to protecting their nursing 
home residents.
    During the past 5 years, this committee has heard from the 
HHS Inspector General's Office, the GAO, local prosecutors, 
state inspectors, and auditors and now the nursing home 
industry. They all recommend establishing a national background 
check system.
    I hope this hearing provides the final boost to pass this 
legislation. It is past time to act to protect our nation's 
seniors and disabled patients, and so again I thank you, Mr. 
Chairman, for co-sponsoring the bill and for once again 
bringing this important issue to light.
    The Chairman. Thank you, Senator Kohl. Next we will hear 
from an outstanding member of our committee, Senator Lincoln, 
from Arkansas.

              STATEMENT OF SENATOR BLANCHE LINCOLN

    Senator Lincoln. Thank you, Mr. Chairman, and thank you for 
calling this very important hearing today, and to all of our 
witnesses and panelists that will be here today, we appreciate 
your concern and your willingness to come before us today and 
tell some very trying stories.
    Most of us assume that our elderly and disabled citizens 
living in nursing homes are safe and cared for properly. While 
this is very often true, we will be hearing some very shocking 
stories today of how cruelly some of our most vulnerable 
citizens have been abused in nursing homes, and as Senator Kohl 
mentioned, it is disturbing enough just to think that we still 
require a hearing on this issue.
    I was surprised to find out about the gaps in security and 
the lack of coordination between various sectors charged with 
protecting elderly and disabled people in nursing homes, and I 
was also concerned to learn that law enforcement agencies often 
treat crimes in nursing homes differently than crimes committed 
outside of nursing homes.
    Some of you all may remember one of our former senators 
from Arkansas, Senator David Pryor, who also served on this 
committee. Years ago, Senator Pryor went undercover to work in 
a nursing home and to reveal some of the difficulties and some 
of the challenges that we were facing in our nation's nursing 
homes, and today I am going to be proud to introduce Mark 
Malcolm, who is our Pulaski County, Arkansas coroner, who has 
done tremendous amount of work in trying to improve the quality 
of care in nursing homes as well as point out what some of 
those difficulties and challenges are.
    I will talk more about Mr. Malcolm later when I introduce 
him, but one thing that is very important is that in 1999, Mr. 
Malcolm helped to introduce legislation in the Arkansas 
legislature to require that all deaths of nursing home patients 
be reported to the county coroner for investigation regardless 
of the cause of death, and it has uncovered a great deal for us 
in Arkansas to better understand how we can provide greater 
care for our aging constituents in our communities.
    With the growing elderly population and a growing 
likelihood that our parents and even we ourselves will spend 
some portion of our aging years in a nursing home, ensuring the 
safety and the quality of care of nursing residents becomes 
even more important to all of us. I am confident that we can 
develop solutions to close these gaps and to better protect 
these vulnerable citizens.
    So I look forward to the testimony today and I thank you 
again, Mr. Chairman, for as always bringing about some 
incredibly important issues to the constituents that we serve.
    The Chairman. Thank you very much, Senator Lincoln, and 
thank all the members for their commitment to this committee 
and the work that we are trying to do and for your involvement.
    We would like to welcome now our first panel. This is a 
special panel. It is not easy when you are talking about a 
mother-in-law or a mother and some very bad things that happen. 
But I only thank you by also saying the obvious, that your 
testimony can help future generations from never having to 
experience some of the problems that your families have 
experienced, and in that sense, your testimony here is 
incredibly important for future generations.
    We would like to introduce Mr. Michael Peters. He is from 
the State of Florida. He is an attorney for a person who will 
be known as Ms. Jane Doe, who suffered a rape in a nursing 
home.
    We will have Ms. Barbara Becker, who is the daughter-in-law 
of a person who was attacked by a resident in a nursing home.
    Our first witness will be Mr. Bruce Love. Mr. Love is the 
son of Ms. Helen Love, who died after her neck was broken in an 
incident in a nursing home by an employee of that nursing home. 
Fortunately, before she passed away, a short time before she 
passed away, two days, there was a taped deposition of what 
happened in her own words, which I think is very graphic and 
very, very helpful, and we would like, Mr. Love, if it would be 
all right to show that before you give us your statement, and 
if we could have that interview. It is about 3 minutes.
    Mr. Love, I know that this could not be very easy for you, 
but again, as I said earlier, your appearance here today helps 
to make sure that it never happens again.
    Mr. Love. That is correct, sir.
    The Chairman. We would be pleased to hear from you.

  STATEMENT OF BRUCE LOVE, SON OF PHYSICAL ABUSE VICTIM HELEN 
                      LOVE, MILL CREEK, CA

    Mr. Love. Thank you for having me here, Mr. Chairman, and 
members of the committee. Obviously, I am Bruce Love, and that 
was my mother, and you just saw the film clip. I will just tell 
the story, and this is basically in her own words in the 
beginning of this deposition.
    On Thursday evening, July 30, that was when I saw her for 
the first time lying on a gurney, waiting for treatment after 
she had been assaulted Tuesday evening at Valley Skilled 
Nursing Home.
    My mother's own words are: ``I was in good spirits Tuesday 
evening, watching TV. I had a bout of diarrhea and had the urge 
to go. I asked the attendant on duty for Imodium AD pills but 
got no response. When I leaked some diarrhea into my diaper, I 
called to be changed. It was sometime later when the attendant 
showed up and was quite upset that my diaper was dirty, because 
he had changed me earlier in his shift.''
    ``He called me names and was very rough and abusive in 
changing me. I told him to stop or I would yell for help. He 
said, `Here is something for you to yell about,' and used an 
alcohol water swab through my vagina and my raw rectum.''
    I would like to add one more thing to the list. I did not 
know what Class II open sores were. I do now.
    ``I was on fire and yelled for help. I tried to sit up and 
grab the right side of the bed rail. He punched me with the 
flat of his hand, covered my mouth to stop my scream, and 
chopped me in the back of the neck with his other hand. With 
his left hand, he dug his fingernails into my wrist to break my 
grip on the side rail. With his right hand over my mouth, and 
his left hand squeezing my wrist, he pushed me down into my 
bed.''
    ``I heard a second aide come to the door of my room to see 
about the commotion. When she saw him choking me, I kicked at 
my feet to get her attention, but she just laughed and went 
away. Then I knew no one was going to help me. I could not 
resist his strength and weight, and I could not breathe with 
his forcing my head down on to my chest. My deep inner fear 
told me to stop resisting him or he would kill me. I was afraid 
of dying this way, so I relaxed and went limp, playing dead. 
Finally, he let up his grip and stopped pushing me down. I just 
lay there trying not to breathe too loudly.''
    ``Finally he walked toward the door. My roommate Shirley, 
who had remained quiet during the assault and watched through 
the curtain, spoke up and said, `I saw what you did to Helen, 
so you'll have to kill me, too.' My assailant left the room. 
After a time of silence, I called to Shirley, and she was 
overjoyed to hear my voice. She thought I was dead. We stayed 
quiet all night in fear that he would be back. When daylight 
came, I thanked God I was still alive and I knew something was 
very wrong with my neck because it hurt terribly.''
    ``All my life I have feared being neglected in a nursing 
home, and now I know what it is like. I was so close to death 
and somehow survived the attack. I don't want anyone else to 
suffer like this. Please, son, would you tell someone who can 
help.''
    I am here today to fulfill my mother's request and I mean 
that. After my father's death, my mother could no longer live 
by herself and came to live with me and my family first in 
California and then Nevada. My brother and I both happen to 
live out here. When I moved back to a remote area of 
California, my mother moved to Sacramento to live with my 
brother and his family.
    In 1998, she was in U.C. Davis Hospital for some health 
evaluations. She suffered a broken finger when in a hospital 
bed she was negligently pushed against a steel door frame. The 
hospital assumed responsibility and moved my mother to Valley 
Skilled Nursing Home for physical rehabilitation, and that was 
her only reason to be there was to get this done.
    Wednesday, January 29, I called the nursing home to speak 
with the RN to arrange for him to bring my mother up to where I 
live for a visit. During this call, I was informed that my 
mother had been roughed up a little bit. He informed me that 
one of the aides of the previous evening shift had an 
altercation with my mother and used physical force against her.
    He told me her sheets had been changed this morning because 
there were blood stains on them. At that point, he was 
interrupted. When he came back on the phone, he told me there 
was an individual there who wished to speak with me, at which 
time he handed the phone to someone else.
    I did not know who this person was, and I had to question 
him to find out that he was the Administrator of Valley Skilled 
Nursing Home. He told me that the problem was taken care of and 
that the employee would no longer be tending my mother.
    In addition, the administrator told me that the Department 
of Health Services had been notified. He also told me that the 
nursing home doctor would evaluate my mother for possible 
injuries, and if any were found, she would be taken across the 
street to U.C. Davis Medical Center. This ended our 
conversation.
    I was very upset, so I immediately telephoned my brother 
and I could not reach him at work. Then I called a friend who 
was a local deputy sheriff. He advised me to speak with his 
sergeant and also the district attorney's office in the county 
that I live in.
    Both officers advised me to get my mother away from the 
nursing home and to a hospital as soon as possible. They also 
suggested that I have a family member transport my mother to 
ensure that she would be cared for in a humane and loving 
manner.
    I was finally able to reach my brother at home about 4 p.m. 
He immediately went to the nursing home to see our mother and 
called me from there. He was alarmed at my mother's condition. 
Her neck was very sore and painful. She had bruises on her chin 
and chest and lacerations on her right wrist.
    She told Gary that she had been hit very hard on her chin 
and on the back of her neck. My brother telephoned our mother's 
personal physician and recommended Gary take our mother to the 
hospital as soon as possible. Gary had to go home and get my 
mother's wheelchair because he was not receiving any 
cooperation from the nursing home in moving her to the 
hospital.
    When he returned, my brother was told by the nursing home's 
evening shift supervisor he could not take my mother out of the 
nursing home, at which time he called me for help. I spoke with 
his supervisor and informed him that we indeed were taking my 
mother to the hospital regardless of his protests.
    Ironically we were informed by the nursing home official 
that it was not medically advisable to move our mother to the 
hospital. My brother had to use force to overcome the protest 
of the nursing home to get my mother out of the nursing home. 
This took an additional hour.
    During this time, my brother called the Sacramento Police 
Department and explained what happened. They sent an officer to 
Valley Skilled Nursing Center, and they also sent a 
photographer to the hospital to be there when my mother 
arrived.
    After extensive evaluation at the hospital, it was 
determined that my mother had indeed suffered grave injuries to 
her neck, and in fact her neck was broken. Vertebra 3, 4 and 5 
were displaced leaving my mother's head hanging to the side.
    She was unable to hold up her head. In the hospital's 
attempted emergency  surgery--I want  to clarify  one  point. 
She  was  given anesthesia to see if she could tolerate this 
and she expired. However, due to my mother's health condition 
and sensitivity to anesthesia, she expired on the table and had 
to be revived. The only remaining treatment for this injury was 
the installation of a halo, which had to be screwed into my 
mother's skull with metal bolts and rigidly attached to her 
upper torso.
    In addition, a soft cast had to be applied to her right arm 
where the offender had grasped her wrist so hard that it was 
cracked. My mother lived in great pain and severe restriction 
of movement for the rest of her life, which was less than 60 
days. She died on September 24, 1998, 2 days after this 
deposition tape that you saw, and she had requested removal of 
the halo due to severe pain just prior to expiration.
    Prior to my mother's death, the offender had pleaded not 
guilty to the charge of assault and elder abuse. After my 
mother's death, he immediately changed his plea to guilty of 
elder abuse in order to avoid the manslaughter charges.
    If I could add another point where I was very frustrated 
with this was his people beat us to the district attorney's 
office and they had a plea bargain before we could even get the 
rest of our information there. So the district attorney's 
office did not help us.
    He spent one year in the Sacramento County Jail. As for 
Valley Skilled Nursing Center, they hired this individual to 
care for the elderly;  they  failed to  perform an  adequate  
background  check before hiring this person. After 
investigation, my attorney learned that he had been dismissed 
from two prior nursing home positions for aggressive behavior 
toward residents.
    The  nursing home  also  failed  to  recognize  the extent  
of my mother's injuries and to take her to the hospital 
immediately. If my brother and I had not stepped in and 
intervened, my mother might never have received any medical 
attention for the broken neck and broken wrist after being 
assaulted by this employee. Moreover, this man might still be 
caring for the elderly today.
    Since the focus of this hearing is to hear about the 
response of law enforcement and other agencies to the physical 
and sexual abuse in nursing homes, I would like to share my 
experiences in this regard. We got no assistance from the 
social services agencies that we contacted. The ombudsman who 
was very good to us had no authority to do more than conduct a 
cursory interview and write up his observations.
    A state agency surveyor in the building where my mother's 
neck was broken was there to investigate another spot or 
another matter. No one from that nursing home reported to her, 
and she was in the very next morning while my mother was still 
there.
    Prosecutors did their best to prosecute the assailant, but 
much of the information was provided by our attorney. That is 
where the initiative came from to go after this guy was through 
my attorney's office.
    Finally, the judge seemed unsure about the trial and what 
to do with the nursing home aides who abuse the elderly. After 
prompting from the attorneys, the assailant's license was 
revoked, and he was ordered not to have contact with the 
elderly in future work.
    However, in spite of his actions that contributed to my 
mother's death or the charge of elder abuse, he only spent 6 
months of a total of a year in the county jail.
    There are no words to describe how devastating his 
experience is to me and my family. We entrusted my mother's 
care to institutions that failed us in every respect. My only 
hope is that somehow telling my mother's story, I can prevent 
this from happening to anyone else's mother in the future. I 
urge this committee to take action to ensure our senior 
citizens are protected at home, and after hearing what you had 
to say, I thank you, I thank you very much for your commitment 
to do this. Thank you for inviting me here today.
    [The prepared statement of Mr. Love follows:]
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    The Chairman. Mr. Love, thank you so very much for what I 
know has been a very difficult time that you have been through. 
We certainly apologize for you having to go through it, but 
your statement here today is extremely important, and we thank 
you for being with us.
    Next, we will hear from Ms. Barbara Becker. Ms. Becker.

STATEMENT OF BARBARA BECKER, DAUGHTER-IN-LAW OF PHYSICAL ABUSE 
             VICTIM HELEN STRAUKAMP, EVANSVILLE, IN

    Ms. Becker. Mr. Chairman, members of the committee, thank 
you very much for allowing me to represent my mother-in-law 
Helen Straukamp, a homicide victim.
    According to the facility, Helen had been injured. The 
hospital was informed that she suffered a fall, but an employee 
later told us of the actual assault. An eyewitness reported 
that Helen was picked up by the arms from a standing position, 
lifted off the floor and slammed into a wall and handrail, 
falling to the floor unconscious.
    Helen was never even able to stand again and died 22 days 
later. The coroner ruled her death a homicide. The picture on 
the left is the way she was prior to the assault. I discovered 
on my own in Louisville that the perpetrator of this assault 
was a male mental patient with a decades long violent history, 
which included four shootings, SWAT teams, prison time, et 
cetera. None of this was ever mentioned in the investigations.
    I found documents signed by the nursing home showing that 
they knew of his history. After the assault on Helen, this 
resident was soon given his usual access to the entire 
population of the facility. He threatened to castrate a 
wheelchair-bound resident while a surveyor was in the facility.
    He attempted to assault yet another elderly female 
resident, and the administration of the facility did nothing. I 
notified a detective and the prosecutor's office. A judge 
issued an order for an involuntary removal to a psychiatric 
unit where he had to be placed in total lockdown and charged 
with involuntary manslaughter pending a competency hearing.
    My experiences with regulatory agencies, law enforcement, 
et cetera, are as follows: Due to my dogged determination for 
accountability, I contacted elected representatives including 
the Governor, the State and U.S. attorneys, HCFA, HHS, and the 
GAO. It required four investigations to reveal 42 pages 
covering 6 years of previously undiscovered violations from the 
date of this man's admission.
    No immediate jeopardy level was imposed due to Helen's 
death. HCFA overrode the state's flat fine, and imposed a 
$1,000 per day fine, but the scope and severity level remained 
unchanged. Still out of compliance on a revisit, the civil 
money penalty continued and total fines amounted to $60,800. 
But by not appealing, they were granted an automatic 35 percent 
discount on the Federal fine regardless of a homicide.
    To this day, the facility's record on the CMS web site 
appears very favorable. The entire experience with the state 
regulatory agency was adversarial from the very first meeting. 
There was absolutely no doubt to me who was being protected and 
it was not the residents.
    In my first meeting with the department of health official 
I was personally told, ``Well, this was not like a beating.'' 
You can tell for yourself. The former assistant commissioner of 
the Department of Health refused to discuss the case with me.
    Law enforcement investigated but only the perpetrator. I 
contacted Adult Protective Services three times, only to be 
told that they do not handle nursing home cases. They are 
actually barred from investigating nursing home cases in my 
state without orders from the Department of Health. Department 
of Health rarely uses this resource.
    I contacted our Peer Review Organization, and received only 
a letter and a brochure declining to even investigate. The 
Medicaid Fraud Unit completed a very thorough investigation and 
validated every piece of evidence that I had provided.
    I pushed the completed case through the AG's office, who 
took no action, and on to my local prosecutors. They declined 
to investigate or prosecute. There has yet to be any justice 
for a homicide.
    All I hear from the industry are labels of ``isolated 
incidents,'' which must by now number in the hundreds of 
thousands. Frivolous lawsuits, no matter how horrific the case. 
I hear whining for more money, less regulation, and what I 
refer to as tort ``de-form.'' The system leaves no alternatives 
for victims.
    I could have provided reams of evidence today until I 
realized that countless victims and family members like me have 
stood here before you evidence in hand. Countless congressional 
reports, GAO reports and studies have been presented to 
Congress for years, as you know. The evidence is already in. 
Those with the power to stop these atrocities no exactly what 
is happening.
    You have seen thousands of certificates of unnatural 
deaths, thousands of pictures of the bodies of victims of our 
system. At least 15 of the 25 largest chains have been accused, 
found guilty, or have admitted to Medicare fraud of multi-
millions. To my knowledge, not one owner or operator has gone 
to prison. They are not even required to pay back all the 
defrauded funds.
    Negligent homicide and elder abuse within my home or the 
community is treated as criminal, not so inside a nursing home. 
It is just a regulatory offense with no criminal 
accountability.
    I am from a long line of patriots and veterans from World 
War I through Desert Storm, yet veterans referred to as the 
``greatest generation'' are enduring these same nursing home 
atrocities and treated as those least deserving of our 
country's respect. Yet, there is considerable concern for the 
Afghan detainees in Cuba, and it is a felony to euthanize a 
mockingbird in Washington.
    Helen's homicide was included in Congressman Waxman's 
report to Congress July 30, 2001 on reported abuse in one-third 
of our nursing homes and has received nationwide media 
attention.
    It is long past time to restore the civil and 
constitutional rights of nursing home residents. Thousands are 
waiting to hear the results of today's hearings.
    They would like to know when we will have justice, and with 
all due respect, what will I be able to tell everyone across 
the country when I go home? Thank you.
    [The prepared statement of Ms. Becker follows:]

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    The Chairman. Ms. Becker, thank you very much for your 
contribution as well. I know also that it is not easy to talk 
about these matters, but it is incredibly important that we 
receive the information, and we thank you for doing so.
    So, Michael Peters.

STATEMENT OF MICHAEL PETERS, ESQ., COUNSEL FOR RAPE VICTIM JANE 
                        DOE, ORLANDO, FL

    Mr. Peters. Thank you, chairman. Thank you for inviting me 
here today. I am a trial lawyer in Orlando, FL. I have made 
this trip today because this, indeed, is an important issue 
that your committee has chosen to address.
    I am here today because I believe our national treasure, 
our elderly population, is at risk on a daily basis in nursing 
homes across the country. I salute Mr. Love and Mrs. Becker. I 
am humbled in their presence, because although I have heard 
many tales of horror such as theirs in the course of my work, I 
have never experienced it firsthand. I can only imagine the 
pain that their family has gone through, and I salute them for 
being here today to relive that before this committee, hoping 
that something will be done.
    The past 4 years of my law practice have been devoted 
exclusively to the representation of nursing home victims, 
victims of abuse and neglect. I have seen things I never 
thought imaginable. I have a case where a man in Tennessee was 
completely helpless lying in bed, and a certified nursing 
assistant crawled up on top of him and beat him repeatedly 
about the head, and he ultimately was sent to the hospital and 
died from these blows.
    A woman in Florida, 90-year-old woman, helpless again, 
lying in bed, and was beaten in the head with an aluminum can 
because she dribbled some of the formula in the can out of her 
mouth. She too died.
    I have seen bed sores the size of footballs where you can 
see all the way down to a person's bone, but nothing that I 
have come across is more shocking than the case, the facts of 
the case that I came here today to tell you about, and that is 
a case where a 36-year-old woman who had suffered a massive 
stroke. As a result of this stroke, she was completely 
paralyzed on the left side of her body, she was not only 
physically disabled, but significantly mentally disabled as a 
result of the brain injury from this stroke. After 
hospitalization, she was sent to a nursing home because she 
could not care for herself. She needed 24-hour skilled nursing 
care, and she would probably for the rest of her life.
    All of the things that we take for granted, she had to have 
somebody do for her. Get out of bed in the morning, brush your 
teeth, comb your hair, dress yourself, she needed assistance 
eating. If she needed to go to the bathroom, she needed 
assistance. Everything, like I said, that you and I take for 
granted, she had to have help with, and she was there for 2\1/
2\ years, and this was being done.
    As you can imagine over that period of time, she developed 
a level of trust and confidence in those people that saw her in 
a very intimate way every single day of her life. That trust 
and confidence was shattered sometime in April of 2000. Sadly, 
my client did not even know that that trust and confidence had 
been shattered. It was not until January 13, late at night, 
that she began to have excruciating stomach pains. The fact of 
the matter is she was in labor.
    On January 14, in the wee hours of the morning, a nursing 
assistant came in to change her diaper, her adult diaper, only 
to find a baby lying in feces in her diaper with the umbilical 
cord still attached. You see my client had been raped. She had 
no knowledge of this incident. She had no knowledge that she 
was even pregnant. She carried this baby full term, 9 to 10 
months, and nobody from the nursing home ever figured it out, 
the people that were bathing her everyday, that saw her naked, 
they did not figure it out. It was not until they came in and 
found the baby lying there.
    She delivered that baby in that room by herself in the dark 
feeling excruciating pain with no anesthesia, with no medical 
help, with nobody. The nursing home did not call the 
authorities. They did send her out to the hospital or she was 
sent out to the hospital, and miraculously that baby lived. The 
baby is alive today and is being raised by her cousin in 
Orlando, FL.
    I can only say that I spent an hour sitting in my office 
when this case came into my office, trying to figure out how 
something like this could have happened. I have yet to figure 
that out. There are many questions that have been raised by 
this situation, and none of those questions in my mind have 
been answered yet. But I promise you that I am going to find 
out the answers if I can.
    The good news is that in this particular case, local law 
enforcement was able through DNA match to identify a suspect, 
make an arrest. That person has been arraigned and will stand 
trial in Orlando, FL for this heinous crime.
    I certainly would like to answer any questions that this 
Senate committee has regarding this issue. I think that in 
other cases, the case in Tennessee where the man was beaten to 
death, there was not a good response by law enforcement. They 
never did make an arrest. From what I can tell from the 
paperwork, they never made any reasonable investigation of the 
matter. The state agencies and local agencies likewise chose to 
slide this under the rug, and they still have not identified 
the man that beat him to death. I think there is a very 
important issue here, and I appreciate your devotion, the 
commitment that you have made to address the issue. Thank you.
    The Chairman. Thank you, Mr. Peters, and thank you, Mr. 
Love, and Ms. Becker, for your presentations. You know that in 
the almost 30 years I have been in Congress, this is probably 
the most disturbing testimony that I have ever experienced on 
any committee either in the House or in the Senate.
    You know we have special laws that protect crimes against 
juveniles and children in this country, as we should, because 
they are a vulnerable population, but certainly seniors, 
particularly in institutions of care, nursing homes and what 
have you, are also particularly vulnerable and maybe even more 
so than a child, because they are outside of a family setting, 
many times without seeing any relatives or loved ones over a 
relatively long period of time.
    So, while it is important that we give that attention to 
juveniles, it is equally important, if not more so, to make 
sure that we give that same degree of attention to problems 
when crimes are committed against seniors. I mean it just goes 
without saying that for every crime, there is a criminal 
somewhere.
    What you are telling this committee, I think, is that law 
enforcement is not really involved sufficiently to take care of 
that. While it is tragic that these things happen, it is 
equally as tragic if nothing is ever done about it, because 
that would only allow it to occur again in the future.
    Mr. Love, your testimony about your mother is just very 
important and very difficult to give. How did you find out 
about what happened? How did you first learn that your mother 
had had her neck broken?
    Mr. Love. I saw my mother----
    The Chairman. Get close to that mike, please.
    Mr. Love. Excuse me. On Thursday when I went down to see my 
mother, I found out this through the evaluation of the hospital 
emergency room. The very next morning, I went over to Valley 
Skilled, and what was ironic was her charts were still being 
filled out that Helen was awake, spontaneous, and she had left 
the facility Wednesday night.
    The Chairman. How many days was it from the time it 
happened?
    Mr. Love. This was 2 days later. Her charts were still 
being filled out on a Friday that she was, you know, alive, you 
know, was responsive, that kind of stuff, and my mother had 
been removed Wednesday night.
    The Chairman. Did anybody from the facility call the family 
to tell them that something bad had happened?
    Mr. Love. Until I had called, she was, like I said, beaten 
on a Tuesday night, this was Wednesday morning--I was only 
advised from the shift supervisor--not the shift supervisor--
the RN that was taking charge of what had happened to my 
mother. Otherwise, there was no call the night before, and----
    The Chairman. Who was the first to call the law enforcement 
officials? Was it the nursing home?
    Mr. Love. No, they did nothing. My brother took the 
initiative to call the nursing home--not--excuse me--the 
nursing home--called Sacramento Police Department to make sure 
there was an officer that would help him respond to, you know, 
ease and facilitate getting my mother, you know, over to the 
emergency room, and the law enforcement responded with also a 
photographer, who came in the middle of the night and took the 
police photographs to substantiate what her injuries were.
    The Chairman. Did the nursing home ever call law 
enforcement?
    Mr. Love. No.
    The Chairman. What you also say, in effect, is that the 
nursing home really hired a criminal?
    Mr. Love. That is what I understood. Our attorney did some 
investigative work into this gentleman's background, and it was 
not a very good background.
    The Chairman. The person who did this to your mother had 
actually been dismissed from two prior nursing homes for 
aggressive behavior toward residents.
    Mr. Love. Yes, and my attorney has more detail, but that 
kept it brief so we could portray this.
    The Chairman. You mentioned that there was a survey, a 
state agency surveyor, in the building when your mother's neck 
was broken. Can you elaborate on what, not who it was by name, 
but what was that person's position? Was he a state official in 
the nursing home of some sort?
    Mr. Love. She was from Health and Human Services and this 
is for the Aging, and they also take care of the same--the 
ombudsmen turn their reports into these people, and this lady 
was in Wednesday morning on another incident, but was never 
notified while she walked right down the hallway past my 
mother's bed, but was never notified that there was an incident 
at all as of Wednesday morning, and the lady was there, and I 
had talked with that woman.
    The Chairman. So you have a situation here where the 
nursing home personnel, which knew about what happened, neither 
notified law enforcement nor did they notify the state agency 
that regulates nursing homes?
    Mr. Love. That is correct. Also no other evaluation was 
done on her by anyone outside of the nursing home, so that led 
us to believe we were very fortunate to discover my mother's 
injuries at that particular time, because I do not know if she 
would have ever received anything, since the only people that 
had looked at her at all were internal.
    With my mother's neck broken, one of her complaints was 
they tried to have her doing range of motion movement to see if 
she could function and what was going on, and everyone I have 
ever talked to said with a severe neck injury, you would never 
do something like that, and the person that did this was the 
director of nursing.
    The Chairman. You certainly do not do that with a broken 
neck.
    Mr. Love. I would not think so, sir.
    The Chairman. Ms. Becker, again, thank you for what I know 
is difficult, but I also want to assure you that these hearings 
will not be forgotten after you leave. You said that the 
facility had said that your mother-in-law had been injured in a 
fall. Is that how they characterize what had happened to her?
    Ms. Becker. What they left on our answering machine was 
just simply that she had been injured. The documents that they 
sent with her to the hospital indicated that she fell.
    The Chairman. So the family was notified how? By a call 
left on an answering machine from the nursing home?
    Ms. Becker. Yes.
    The Chairman. They indicated that your mother-in-law had 
been injured.
    Ms. Becker. Injured.
    The Chairman. But did not elaborate how?
    Ms. Becker. No.
    The Chairman. What did you do after that? Did you call the 
nursing home and say what do you mean, how is she, or did you 
call and find out more about it, and what did they say?
    Ms. Becker. Initially I called. She had fallen before, so I 
assumed injured, she had fallen. We called to find out whether 
she was still at the nursing home or at the hospital, and she 
was already back at the nursing home because the hospital was 
not told. So we went directly there as soon as we made contact 
with them, but there was no mention of the assault until an 
employee came forward in secrecy and----
    The Chairman. How long after the incident happened did you 
find out what really happened, the fact that your mother-in-law 
had been picked up from a standing position, slammed into a 
wall and a handrail, and fallen unconscious. How long after it 
happened did you actually find out what really happened?
    Ms. Becker. We had been gone for the day. I would say we 
had been at the nursing home for maybe 45 minutes when this 
person came forward.
    The Chairman. Do you know if the nursing home ever called 
law enforcement after it happened?
    Ms. Becker. No, sir, they did not.
    The Chairman. Do you have any knowledge as to whether they 
reported what actually happened to the state authorities that 
regulate the nursing home?
    Ms. Becker. I do not think so. I reported it.
    The Chairman. You yourself had called the state and all 
these other agencies that you called as well?
    Ms. Becker. Law enforcement, yes.
    The Chairman. You said that you did not get much help from 
the regulatory agencies at all?
    Ms. Becker. Right.
    The Chairman. How about from law enforcement?
    Ms. Becker. They did a very good job up to the point of 
investigating this male mental patient, but once he passed 
away, there was nothing further done.
    The Chairman. Do you think that from your knowledge, had 
the nursing home done a background check on employee--this was 
a mental patient in there?
    Ms. Becker. Resident, yes.
    The Chairman. I am sorry. That is for Michael. The person 
that did this to your mother-in-law was actually a patient in 
the facility?
    Ms. Becker. Correct.
    The Chairman. Right. But that patient had a long history of 
rather violent mental problems?
    Ms. Becker. Yes.
    The Chairman. Mr. Peters, another absolutely horrifying 
story. I mean it is just almost unimaginable. On your 
situation, did the nursing home call law enforcement?
    Mr. Peters. Not to my knowledge, chairman. Like I said, she 
was sent to the hospital pretty soon after that, but I have not 
been able to see anywhere in the records so far that the 
nursing home called the family. The family ended up finding out 
when the hospital called.
    The Chairman. So the family found out not from the nursing 
home where it happened, but actually from the hospital where 
she was admitted after the baby was discovered, I take it?
    Mr. Peters. That is what I understand so far.
    The Chairman. When was the family first involved with law 
enforcement officials about what happened?
    Mr. Peters. It was within a couple of weeks.
    The Chairman. A couple of weeks?
    Mr. Peters. A couple of weeks within her being admitted to 
the hospital.
    The Chairman. But obviously the situation here is even more 
separated from the time of the actual crime, which was the 
rape, and not being discovered until the lady had the actual 
baby in the nursing home 9 months later.
    Mr. Peters. That is correct.
    The Chairman. Tell me about the employee who perpetrated 
the crime. I mean this was a criminal. Was there any reason to 
suspect that this person had any kind of tendencies in his past 
record to be involved in this type of activity?
    Mr. Peters. None that I can find so far, but the case in 
terms of the civil case is still ongoing, and for that reason I 
cannot speak a whole lot, but I can say that I will be doing 
discovery on that very issue. I do know that he was a 9-year 
employee of the nursing home. What I do not know is what his 
actions were during that 9 year period. I have not gotten his 
records.
    The Chairman. Can you tell us how and who found out who was 
responsible?
    Mr. Peters. Yes. There was an anonymous call from a woman 
who evidently worked at the nursing home, but she never 
identified herself. She called the police officers.
    The Chairman. I take it that the evidence indicated either 
through DNA or some other manner of gathering evidence that 
this person was, in fact, responsible?
    Mr. Peters. Yeah. What was bothersome to me is getting into 
this the nursing home originally tried to say that my client 
had been taken out of the facility during the time that she 
would have become pregnant. Well, the records show that is 
clearly not the case and a couple of witnesses came forward to 
try to trump up a story to that effect, and it has all been 
disproved. Believe it or not, this man originally claimed that 
this was a consensual sexual relationship, and that is why--and 
he voluntarily gave his DNA, and then they matched up, and, of 
course, anybody that spends 2 minutes with my client knows that 
the notion that this was consensual is absurd.
    The Chairman. Can you tell--my last question--can you tell 
us how the law enforcement officials got involved in this case? 
I know there is civil litigation going on, but from a law 
enforcement standpoint, how did they become involved in this 
case?
    Mr. Peters. They were called likewise by the hospital, 
because what I have found in these----
    The Chairman. Not by the nursing home?
    Mr. Peters. Not by the nursing home. What I was going to 
say what I found in these cases is that when a hospital gets a 
patient that has obviously been the victim of some kind of 
incident in the nursing home, they are pretty quick to get on 
the phone and call the police because they do not want any of 
that responsibility falling into their lap.
    The Chairman. Thank you, Mr. Peters, and thank all of you 
for very powerful testimony. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. Your excellent 
questioning highlights, it seems to me, how the safety net that 
is supposed to protect vulnerable seniors is just full of 
holes. Mr. Love, I was particularly struck by the last page of 
your testimony--basically the entire system broke down--the 
social service agencies, the ombudsman did not have the 
necessary authority, the state surveyors, the prosecutors, the 
judge. I mean at every step of the way the system that is 
supposed to be there for seniors as a safety net, there was not 
any there.
    What I would like to do for just a couple of moments is 
have you trade places with all of us who are sitting on this 
side of the dias. We want to make sure that we do not have 
witnesses here in another 18 months saying exactly the same 
thing. I think, Ms. Becker, you put it very well. The question 
is what do we say when we go home? What do we say about it 
being different?
    The question will be what is it like in 2 years when the 
press has gone away and some of the attention is not there? 
Will we have exactly the same system that exploits and rips 
these people off? So what I would like to do for a few minutes 
is just have each of you put yourself in our shoes. We want to 
make it different this time. Give us a couple of priorities. 
Each one of you, start with you, Mr. Love, then you Ms. Becker, 
and then you, Mr. Peters. You have got the election certificate 
today and tell the U.S. Senate what you think ought to be done. 
Mr. Love.
    Mr. Love. It is ironic. I tried to do something like this 
to help you along with just some ideas. A few of the 
recommendations are--when you were leading into when we started 
this, someone said this, like put a face on the problem. You 
are not going to forget it, and I am just going to use Polly 
Klaus' father keeps things alive, keeps things stirred, and 
when you do this, the interest is there. I do not know of too 
many people that do not know the Polly Klaus story.
    From my situation, the other part was I feel some of the 
laws are there, and all they have to do is enforce them. But 
they have to take that initiative. I have no complaint with the 
Sacramento PD, so if I was listening to this--they did what 
they could, but the detective told me once it is turned over to 
the DA, I cannot do anymore.
    There is one thing I am going to try and say with this in 
some way or another, we have to with some aid promote Health 
and Human Services enforcement, but get them free of 
limitations by supervisory pressure not to go after offenders. 
I cannot say too much specifically on sources, but we had an 
individual come to us and say that she was too efficient and 
she needed to tone it down, and if she did not do that, it was 
going to cost her her job.
    Senator Wyden. What level of involvement did this come 
from? Was this a governmental person?
    Mr. Love. This was a governmental person, and like I said--
--
    Senator Wyden. Somebody in government said you are doing 
too much to protect seniors?
    Mr. Love. This was a supervisory level, you know, and this 
woman did not like it, she would not have a position, and she 
had to say that off the record for keeping her job.
    The other thing is I know a little bit about, you know, the 
IRS and a few other things, but in the IRS, if you are in a 
corporation, and you are one of the officers, and shall we say 
money is lost, and you are an executive in that position, they 
can go after you personally to make sure that the government is 
reimbursed for what should have been paid in the first place.
    So one of the things I would consider is can you hold 
owners or managers of a corporation criminally responsible? All 
I am saying is my experience has been there has been a number 
of cases that I have had a chance to see or know about where 
the people are fined, the insurance companies pay the fine, and 
business goes on as usual.
    Senator Wyden. Is business going on as usual at the 
facility where your mom was?
    Mr. Love. I cannot speak recently on that. But what I am 
saying is there were other litigations that came in after our 
case and that was going to be substantially damaging to them, 
and the insurance company no longer wanted to insure them. They 
had lost their insurance after our case is what my 
understanding was.
    The biggest thing what I am saying was is if someone would 
be held criminally responsible, and I will use the terms that I 
have written right here, for continued abuse in the conduct of 
the operations of a nursing home, and there is no corrective 
measures, are we to believe that there is no consequences for, 
shall we say, continuing bad business when--all I am saying if 
I was a member of a corporation, and my corporation did not pay 
it, if I am the one that has got the assets, they could go 
after me and take them back. I just wonder whether something 
along that line.
    I will make one last statement, and I will be brief. After 
contacting my attorney to make sure I was correct with this, 
collect the fines and penalties assessed by the state agencies 
for nursing home violations. In California, this would help you 
get the needed funds for enforcement, and the money just is not 
gone after or it is appealed and appealed and appealed and 
reduced quite substantially.
    But with her passing on to me the knowledge that there is 
millions of dollars that have not been gone after to be 
collected that have been assessed for Class A, which is the 
most serious violations, I do not know what to say. They had 
been fined. Nothing is being done.
    Senator Wyden. Good recommendations. Ms. Becker.
    Ms. Becker. I believe I said something like that in my 
testimony. We have regulations, probably more than we need. 
They are not worth the paper they are written on if they are 
not enforced. To me the biggest insult of the whole experience 
has been that had this happened in my home, there is no 
question I would have been investigated, I would have been 
prosecuted, and I probably would have been put in prison. That 
is why I cannot let it go. I think that would change a 
tremendous amount of things down the ladder.
    Senator Wyden. Sends a powerful message. Mr. Peters.
    Mr. Peters. Yes. The first thing I would do, and I am 
certainly no expert on what can be done on the Federal level 
versus the state level, but I would suggest having Federal 
imposed regulations in law across the board for nursing homes 
in the United States that require mandatory criminal background 
checks, mandatory investigation into their background for 
whatever facilities they worked at previous, because the nature 
of the nursing home business is people move around a lot, and 
they get lost in the shuffle.
    They need to have their background investigated going back 
probably, you know, 5 to 10 years. Then I would impose Federal, 
stiff Federal penalties, when nursing homes have cases of 
unreported abuse or it is discovered after the fact that there 
was abuse and they knew about it and they did not do anything 
about it.
    Then if you can discover that they violated these Federal 
regulations on hiring, the penalties need to be stiff and maybe 
include license revocation.
    The third thing I want to talk about real briefly, if I 
can, has nothing to do with we are talking about the response. 
I think one of the big things in looking at nursing home care 
going forward in this country is prevention, and again I do not 
know if this can be done on a Federal level, but security 
cameras in rooms, affectionately known as ``granny cams,'' if 
the residents and their families want them, they can agree to 
it, you can put them in there, and I am telling you people do 
not do things when they know the camera is watching. It may not 
eliminate all the bad apples that get in, but it will certainly 
limit the bad behavior.
    Senator Wyden. Mr. Chairman, my time is up, but I think 
because you and I are on the committee involved in 
communications issues, that is an area we ought to follow up 
with Mr. Peters on, because he has, in effect, said let us look 
at a tool that would empower the patients and families. In 
other words, you are not forcing it on them. You are saying let 
us look at something that empowers them to have this added tier 
of protection.
    Senator Breaux and I are both on the committee that deals 
with these issues, and we will have the chance to follow that 
up as well. Thank you, Mr. Chairman.
    The Chairman. Well, we got cameras catching people running 
red lights, for God's sakes. I mean you think if you can use 
cameras with something as insignificant as that, something like 
this is something that should be considered.
    Senator Kohl.
    Senator Kohl. Thank you very much, Mr. Chairman, and I 
would like to say I can guarantee that your coming here and 
testifying is not going to be in vain, and if I guaranteed 
that, I am sure you would look at it with some degree of 
question, but I do believe that this hearing is going to result 
in improvement in the kind of care and the kind of oversight 
that we give to our elderly who are in nursing homes.
    Just to talk about this bill that we have been trying to 
get passed now for 5 years, this national registry of abusive 
long-term caregivers, the bill also would require that the FBI 
conduct criminal background checks to see if there are any 
serious violations in the history of a potential employee, of a 
health care facility, which I think you indicated, Mr. Love, 
was on the record of the abuser of your family member. There 
was a record of a criminal violation.
    Mr. Love. That is correct, Senator. My attorney was dogged 
enough to go back and find, you know, what had happened with 
this previous individual. We were not given that information. 
My attorney found out.
    Senator Kohl. Would the three of you be at least minimally 
satisfied if we could pass that bill? That is to say establish 
a national registry of those people who have abusive 
backgrounds, and also require that the FBI conduct a criminal 
background check on any people who apply for employment? Ms. 
Becker.
    Ms. Becker. May I ask a question?
    Senator Kohl. Yes.
    Ms. Becker. Would it be mandatory that if a facility just 
does not report, say they have an employee who abuses one of 
their residents, and if they do not report that and let that 
person move from place to place, which happens a lot, would 
there be stiff penalties for doing so?
    Senator Kohl. So you are suggesting we add that provision 
to the bill?
    Ms. Becker. Yes, sir.
    Senator Kohl. OK.
    Mr. Love. They found out in California that you are 
supposed to turn in any violations, so the nursing home is 
supposed to do that. What they found is instead of turning in 
the paperwork, there is a habit of, shall we say, you go down 
the road and we will keep our mouth shut, get lost. That is why 
homework had to do be done in reverse to find out what this 
individual was about.
    Senator Kohl. Just to get at this question about reporting 
it, presumably the reason that a facility would not report it 
is because it would reflect badly on them?
    Mr. Love. That is correct.
    Senator Kohl. But if, in fact, there was no public 
declaration other than this person is listed as an abuser, then 
the facility would have no compunction about reporting that 
person as an abuser to be listed on a registry; right?
    Mr. Love. I would agree with that. That was the reason in 
California, again, the background checks are supposed to be 
performed to put the responsibility on the new hiring agency, 
and shall we say some are not diligent in that aspect?
    Mr. Peters. Senator Kohl, I think the national registry 
idea would be a great starting place, which would allow nursing 
homes to, in fact, investigate their employees on a nationwide 
level. Therefore, if you have a CNA, a certified nursing 
assistant, that has worked in Arizona, and had problems and 
moved to Florida to work, it would be required by the new 
nursing home to check the national registry. If that person is 
on it, they would be precluded from hiring that person. You are 
going to eliminate some of the bad apples. I think it is a real 
good place to start.
    Senator Kohl. OK. Well, as I said, we cannot guarantee that 
we can get this bill passed, but we have been trying for 5 
years to get it passed, but I believe our chances are better 
than they have ever been before, and I believe your presence 
here today, your testimony, the record that you are 
establishing, will have a lot to do with providing the impetus 
to get the bill passed, and I think it is going to be done. So 
we all appreciate your coming.
    The Chairman. Thank you, Senator Kohl. I would just make an 
observation. Back in 1998, Congress passed an appropriations 
bill that allowed the states in that legislation to request FBI 
criminal background checks for nursing home employees. It is 
cheap, relatively simple. FBI does the work, gives you a 
report. I think there are probably only two states that availed 
themselves of that opportunity now. They can do it right now. 
The FBI will do the work for them, but they are not doing it. 
Senator Lincoln.
    Senator Lincoln. Thank you, Mr. Chairman, and once again 
thanks for your leadership in this issue on behalf of our 
seniors, but also on behalf of aging Americans. When I was a 
staffer here in Washington before I was elected, I can remember 
calling home to my mother, and she did not have time to talk to 
me on the phone because she was going over to the elementary 
school. She was a room mother, and I made the comment to her, I 
said I am the youngest of your four children, you have not had 
a child in the public schools in almost 25 years now, and I 
said why are you going over? She said because those kids need a 
room mother, they need a valentine cookie, they need a bean bag 
toss at Halloween, and in jest she said, she said I want those 
children to grow up as well adjusted as possible. She said you 
never know. They may be the ones running the nursing home you 
put me in one day.
    So it is not just these atrocities and these tragic stories 
that you have shared with us today, but it is the fear in our 
aging population of what they may be subjected to, because of 
the stories you have shared with us. I do not have any 
questions for you. I just want to tell you how grateful I am 
that you were willing to bring these stories to light, to bring 
these stories to us, in hopes that we can work with those in 
states who have gone a little bit further, who have pushed the 
envelope.
    There are some things in our State in Arkansas where we 
have seen some terrible things happen, and we have worked with 
our coroner, who will be testifying in the next panel, but 
certainly so many things that we could be doing, and hopefully 
in conjunction with Senator Kohl and Senator Breaux and Senator 
Wyden and myself, we can continue to bring to light to our 
colleagues and move forward in some areas, particularly in 
legislation. It will be of great assistance, not only to ensure 
that the tragic stories you have told us today do not occur 
again, but that we can help to eliminate any fear of those 
aging constituents out there who are fearful of where they 
might be themselves one day.
    So thank you very much for coming. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Lincoln. I want to thank 
the panel again. This is obviously very powerful testimony, and 
shame on us if we do not follow up and get something done as a 
result of it. I assure you that we intend to and intend to do 
it aggressively, and this panel would be excused, and hope to 
continue to work with you.
    I would also note for the record, I mean I think the 
testimony we have heard is not typical of nursing homes in this 
country. I mean the fact that it ever happens is one incident 
too many.
    The Chairman. Let us welcome up the second panel. Ms. 
Leslie Aronovitz with the General Accounting Office who did the 
report for us; Mr. Mark Malcolm who is the coroner from Little 
Rock, who maybe Senator Lincoln will say something about; Ms. 
Delta Holloway, who is with the American Health Care 
Association, representing the nursing home industry; Mr. Henry 
Blanco, the National Association of Adult Protective Service 
Administrators; and from my home State of Louisiana, Sheriff 
Charlie Fuselier, on behalf of the National Sheriffs' 
Association.
    I told everyone that for Sheriff Fuselier, as he testifies, 
I will engage in simultaneous translation so that everybody can 
understand us. [Laughter.]
    But Charlie, we are very happy that you are here with us. 
Let us take Ms. Aronovitz, again with the General Accounting 
Office, to give us her testimony from GAO. Thank her very much 
for what has been a very long effort on the part of GAO in 
looking at this issue, and on abuse in nursing homes, and I 
think they did a terrific job.
    Ms. Aronovitz.

 STATEMENT  OF LESLIE  ARONOVITZ,  DIRECTOR,  HEALTH FINANCING 
AND PUBLIC HEALTH ISSUES, HEALTH EDUCATION  AND HUMAN  SERVICES 
       DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON, DC

    Ms. Aronovitz. Thank you, Chairman Breaux, and committee 
members. I am deeply saddened but unfortunately not shocked by 
the testimony we have heard on the first panel. The fact is we 
cannot overstate the vulnerability of nursing home residents 
who are physically and mentally abused and impaired.
    The Federal and state oversight agencies and the nursing 
homes themselves are fully aware of the heightened risk these 
fragile residents face. In fact, these entities have policies 
and procedures in place intended to protect residents from 
abuse. Nevertheless, our work in three states confirms that 
significant gaps in these protections leave residents at 
considerable risk. I say this fully acknowledging that even the 
best of safeguards cannot prevent every incident of abuse.
    The ambiguous and hidden nature of abuse in nursing homes 
makes the prevalence of this offense difficult to determine. 
For reasons such as fear of recrimination of adverse publicity, 
as was mentioned, we found that family members, nursing home 
staff and even management do not always report allegations of 
abuse timely enough for it to be fully investigated or at all.
    We were also concerned that some states do not interpret 
and apply the definition of abuse in the way that the Centers 
for Medicare and Medicaid Service's officials believe that the 
definition should be applied. In Federal nursing home 
regulations, CMS defines abuse as the willful infliction of 
injury, unreasonable confinement, intimidation or punishment 
with resulting physical harm, pain or mental anguish.
    The states we visited maintain their own definitions that 
are consistent with this one, but their application of the 
definition varies. For example, Georgia survey agency officials 
were less likely to determine that an aide had been abusive if 
the aide's behavior appeared to be spontaneous or the result of 
a reflex response.
    Pennsylvania officials were not likely to cite an aide for 
abuse unless the aide caused the resident serious injury or 
obvious pain. So, for example, of someone took a hairbrush and 
struck the back of a resident's head and no injury appeared, 
they might be less likely to decide that that was, in fact, 
abuse.
    The Illinois survey agency considered any nonaccidental 
injury to be abuse and cited aides even when residents were 
combative or had not suffered serious injury. In discussing the 
states' different approaches, CMS officials contended that an 
aide who slaps a resident, regardless of whether it was a 
reflexive response, should be considered abusive.
    In light of these different perspectives, we have 
recommended that CMS clarify the definition of abuse to ensure 
that states cite abuse consistently and appropriately.
    Another problem we identified consistent with the testimony 
you just heard is that existing protections are not adequate to 
keep a person with a history of abuse from getting a job in a 
nursing home. For instance, when hiring nurse aides who are the 
primary caregivers in nursing homes, facilities are required to 
check a state registry for information on these perspective 
employees.
    However, the registry is limited to information about an 
aide's employment in nursing homes within the state. Even when 
an aide has been cited for abuse within the state, there may be 
a considerable time lag between before that information gets 
entered into the state registry.
    We believe that such a serious citation warrants due 
process, but currently there is no time limit on the beginning 
of the process and on the end, not in the middle where due 
process occurs that needs to be fixed.
    For instance, there is no time limit on states completing 
the investigation that could lead a nurse aide to be cited nor 
in a decision being rendered after a hearing has taken place.
    That just extends the time period that a name would 
actually go on the registry if, in fact, a nurse aide was 
determined to be abusive. At the states we visited, it took 5 
to 7 months on average between the initial finding of abuse and 
its entry in the registry, and several cases took over 2 years.
    During this time, a nursing home employer consulting the 
registry would have found clean records for these aides. There 
can be other cracks in employment screening. For instance, in 
the case of certain employees such as laundry aides or 
maintenance workers, there is no registry or licensing entity 
for a nursing home employer to consult.
    These individuals would have to have a criminal conviction 
which would be found in law enforcement records before an abuse 
history would show up on a background check. Furthermore, some 
states allow individuals to begin working before facilities 
complete their background checks. In Illinois, a new employee 
can work for 3 months before the criminal background check is 
complete, while in Pennsylvania, an aide can work for 1 month 
under these circumstances.
    In Georgia, on the other hand, criminal background checks 
must be completed within 3 days of the request and nurse aides 
cannot start work before then.
    Overall, we believe that existing safeguards need to be 
strengthened and we are making five recommendations for CMS to 
address the systemic problems discussed in our report.
    However, state officials and nursing homes must also 
practice unflagging vigilance. The extreme vulnerability of the 
nursing home population calls for nothing less. Mr. Chairman, 
this concludes my prepared remarks, and I will be glad to 
answer any questions any of you may have.
    [The prepared statement of Ms. Aronovitz follows:]

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    The Chairman. Thank you very much, Ms. Aronovitz, for the 
good work that GAO has done for this committee.
    Senator Lincoln, do you want to introduce Mark Malcolm?
    Senator Lincoln. I would be honored to. Thank you, Mr. 
Chairman. We are extremely honored in Arkansas to have Mark 
Malcolm who was appointed as coroner of Pulaski County on 
January 1, 1995 by the Pulaski County judge and serves as the 
only full-time county coroner in our State of Arkansas.
    He served as the Chief Deputy Coroner for 8 years prior to 
being appointed as coroner. He also serves, however, as 
instructor for the University of Arkansas Criminal Justice 
Institute, the University of Arkansas at Little Rock, and the 
University of Arkansas for Medical Sciences. He also founded 
the Pulaski County Coroner's Office of Professional Education 
Program which provides death investigation training to law 
enforcement officers, prosecutors and coroners throughout our 
State.
    He also holds the fellow status with the American Board of 
Medi-Legal Death Investigation and is one of 26 board certified 
death investigators in the United States.
    So, Mr. Chairman, I think you will agree along with that 
criteria and background, and also the fact that he helped to 
introduce legislation in our legislature, our state 
legislature, to require that all deaths of nursing home 
patients be reported to the county coroner for investigation 
regardless of the cause of death, and certainly without this 
law, many cases of abuse resulting in the death of nursing home 
residents would have gone and would continue to go unreported.
    So we are extremely honored and privileged to have such an 
individual in our state who cares so much about making sure 
that in point in fact these laws are adhered to and what is on 
the books is actually practiced. We appreciate very much the 
service you give to the people of Arkansas, Mr. Malcolm, and we 
welcome you to the committee.
    Mr. Malcolm. Thank you.
    The Chairman. Mr. Malcolm, with that powerful introduction, 
you are on.

      STATEMENT OF MARK MALCOLM, CORONER, LITTLE ROCK, AR

    Mr. Malcolm. Thank you, Mr. Chairman, and members of the 
committee. Thank you for the opportunity to be here, and 
certainly I am grateful for Senator Lincoln's introduction.
    In January 1994, my office began fielding the first 
inquiries regarding deaths of nursing home patients. The 
questions came primarily to us from family members and were 
generally centered on the level of care or lack thereof 
provided by the facility. More specifically, did the level of 
care contribute to or cause the death?
    The initial investigations consisted primarily of nursing 
home medical and hospital record reviews, study of physician 
orders, physician interviews, interviews of both current and 
former nursing home staff members, and in most cases we found 
that the level of care was adequate and did, in fact, not 
contribute to the cause of death.
    Some cases, however, warranted further scrutiny. From 1994 
until 1998, my office conducted six exhumations of nursing home 
patients. After a full post-mortem examination, all six were 
determined to have been unnatural deaths. Two cases were ruled 
as medication errors and four were asphyxial deaths.
    The case that drew the most attention was that of a 78-
year-old man who died on the evening of July 28, 1998. He had 
been improperly placed in a vest restraint and was discovered 
wedged between his mattress and bed rail. He was so tightly 
compressed in the position that four staff members had to work 
to free him. He was dead by the time he was extricated.
    Despite the circumstances of the death and a large injury 
to his upper chest that was evident at the time of his removal, 
the administrator of the home notified the family that the 
decedent had died naturally and in his sleep. An audit by the 
Arkansas Department of Human Services Office of Long-Term Care 
brought that death to my attention and an investigation began. 
Following exhumation and autopsy, the death was ruled as 
positional asphyxia.
    Under existing Arkansas law, this death and other cases of 
unnatural death in nursing homes should have been reported to 
the coroner and to law enforcement, and despite the existing 
statutory requirement to report the deaths, nursing home 
administrators chose to release the decedents to funeral homes 
preventing that legally required investigation.
    Whatever the motive, it was clear that a law directed 
specifically to long-term care patients was necessary. In 
January 1999, I began working with the counsel for the Office 
of long Term Care. We authored a bill, submitted it to the 
state legislature. That bill was passed and signed into law as 
included in your packet of information today.
    Essentially what the law requires is that all deaths of 
nursing home patients in Arkansas be reported to the county 
coroner regardless of the cause of death. The law further 
requires that if a person is transferred to a hospital from the 
nursing home, and they die within their first 5 days of 
admission, that case also must be reported to the coroner.
    Every nursing home patient who dies in Pulaski County, 
Arkansas is examined by me or a member of my staff. In addition 
to the physical examination, there are complete reviews of 
medical records, interviews with physicians, facility staff and 
family. We compare the pharmacy records to the doctors' 
prescriptions. We match that against the nurses' notes to 
ensure that medications are properly administered.
    Since July 1, 1999, my office has conducted approximately 
2,400 nursing home investigations. The majority of these cases 
we have found the level of care to be adequate. In 56 of these 
death investigations, we have uncovered a much different story. 
We have dinner-plate sized bed sores with infected, necrotic, 
dying tissue, infected feeding tubes, rapid and unexplained 
weight loss, dehydration, improperly administered medications, 
and medication errors that have resulted in death.
    We have found basic needs such as general hygiene and 
dental care neglected, urine and fecal matter dried on bed 
linens and in diapers that have been left unchanged for what is 
most assuredly hours. We have seen a patient whose care had 
been so poor that a mucous growth formed on the roof of her 
mouth. It was left untreated. It eventually sloughed off and 
she asphyxiated and died.
    When my staff and I arrived to examine this woman and 
conduct our investigation, there were ants on her body and in 
her bed.
    Without this law in place, in my State, these cases would 
go unreported and unnoticed and the decedents would simply be 
released to funeral homes and the families would be left none 
the wiser.
    In 16 years at the coroner's office in Pulaski County, I 
have been active at my state legislature on a variety of 
different issues, but I can tell you, members of this 
committee, none more important than Act 499 of 1999. The 
intention of the legislation was solely for the protection of 
the long-term care patient. However, independent oversight such 
as that provided by my office can also provide a modicum of 
protection to respectable, responsible facilities against 
frivolous accusations and unwarranted claims.
    Facilities that are staffed by competent, conscientious 
health care professionals welcome an independent confirmation 
of their good care in the currently litigious atmosphere of 
their industry.
    Mr. Chairman, that concludes my prepared remarks. Be happy 
to answer any questions.
    [The prepared statement of Mr. Malcolm and related 
information follow:]
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    The Chairman. Thank you very much, Mr. Malcolm, for your 
testimony. Next from Louisiana Sheriff Charlie Fuselier. 
Charlie, thank you for coming up. We really appreciate it.

 STATEMENT OF CHARLES FUSELIER, SHERIFF, ST. MARTIN VILLE, LA, 
        ON BEHALF OF THE NATIONAL SHERIFFS' ASSOCIATION

    Mr. Fuselier. I would like to thank you, Senator Breaux, 
and the members of the Special Committee on Aging.
    The Chairman. Pull that mike a little closer, if you can, a 
little bit closer.
    Mr. Fuselier. Thanks for inviting me to testify as to law 
enforcement efforts to address nursing home abuse at this 
hearing on crimes against the elderly in nursing homes. It is 
my hope that this testimony will help to improve the quality of 
life for older adults residing not only in nursing homes but in 
any type of residential care facility which includes group 
homes, assisted living facilities, and mental retardation 
facilities.
    By initiating the first Triad Program in the Nation on 
August 30, 1989, the St. Martin Parish Sheriff's Office has an 
established and long-standing record of commitment to older 
adults that is recognized as extending beyond my jurisdiction 
in St. Martin Parish, LA.
    The Triad Program has proved to be a successful crime 
prevention program aimed at older adults. Currently, there are 
some 834 Triad Programs in 47 states. Additionally, England, 
Canada, and Australia have expressed interest in utilizing the 
concept in their countries. In 1990, the St. Martin Parish 
Sheriff's Office instituted the statewide Elderly Crime Victim 
Assistance Program through grant funding from the Louisiana 
Commission on Law Enforcement and the Administration of 
Criminal Justice.
    In 1992, the Elderly Protective Services Program was 
initiated in the State of Louisiana. These two programs served 
to heighten our understanding of the severe vulnerability of 
infirm older adults especially when they are in the care of 
those persons they know and trust.
    During the 1994 legislative session in Louisiana, 
legislation was enacted creating the Committee for Law 
Enforcement Services to the Elderly. This committee was formed 
in response to the growing concern of crimes against the 
elderly to include abuse, neglect and exploitation of the 
elderly residing independently in their homes as well as those 
in residential care facilities.
    Representation on this committee includes members from the 
Louisiana Commission on Law Enforcement, the Louisiana 
Sheriffs' Association, the Louisiana Municipal Chiefs of 
Police, the State of Louisiana Justice Department, the 
Governor's Office of Elderly Affairs, the Councils on Aging and 
the American Association of Retired Persons and the Louisiana 
District Attorneys Association.
    Early on members of this committee recognized and expressed 
a concern about law enforcement's response to crimes in 
residential care facilities. The concern grew that there was an 
apparent lack of continuity in the response by law enforcement 
from jurisdiction to jurisdiction to crimes committed in 
residential care facilities.
    As a result of the committee's concern, a Crime in 
Residential Care Facilities Conference was held in Baton Rouge, 
LA on November 12, 1997. The agenda included a legal session, 
investigating crimes in residential care facilities, physical 
and behavioral indicators of abuse, neglect, and the role and 
responsibilities of the various investigating agencies.
    The roles and responsibility section of that conference 
included a panel of representatives from the Department of 
Health and Hospitals, the State of Louisiana Justice 
Department, Elderly Protective Services, the Louisiana Nursing 
Home Association, state long-term care ombudsman, the police 
supervisor of Baton Rouge Crimes Against the Elderly and a 
sheriff. In Louisiana, this conference was the impetus for the 
underlying questions about local law enforcement's response to 
crimes in residential care facilities.
    In 1999, the legislation was enacted forming the Aged Law 
Enforcement Response Team, the ALERT officer. The ALERT program 
established a 40-hour elderly service officer certification 
through the Peace Officers Standard and Training Council. Law 
enforcement officers successfully completing the course 
lectures and written tests were certified as elderly service 
officers.
    The objectives of the ALERT program are: to create a 
statewide network of law enforcement officers with specialized 
training in working with the elderly to ensure uniformity in 
the delivery of high quality law enforcement services to 
elderly citizens; to have the ALERT ESO officer serve as the 
primary point of contact when elderly victims are involved; and 
to provide training within their agency and others in the 
parish on effectively assisting older adults.
    These objectives pertain to all elderly in Louisiana 
whether residing independently or residing in residential care 
facilities. The 40 hour curriculum includes 19 hours of 
instructions on identification of abuse, neglect and 
exploitation; the role of the long-term care ombudsman in 
nursing homes; investigating crimes in residential care 
facilities; criminal statutes dealing with the cruelty, 
exploitation and sexual battery of the infirm; and the United 
States Attorney's Office role in nursing home abuse.
    Plans are currently being drafted for 2003 to include 
having at least one ALERT trained assistant district attorney 
in each judicial district.
    In conclusion, there is a general assumption that because 
the infirm elderly are residing in residential care facilities, 
that government will assure that they are in a safe 
environment. The reality is that because of their confinement, 
in some instances, the infirmed elderly can be trapped in a 
situation of abuse and have no one to turn to for protection.
    Certainly, physical and sexual abuse in residential care 
facilities are a strong priority that needs to be addressed by 
law enforcement with the same type of responses given to crimes 
committed to other citizens living independently outside a 
facility.
    Law enforcement's general perception is that they are 
treated the same as everyone. The reality is that without 
specialized training such as offered by the ESO ALERT program, 
law enforcement generally does not have the skills to properly 
evaluate such a complex situation.
    Twenty-five years ago, there were very few juvenile 
officers. Now, they are a significant part of the law 
enforcement community. As we the baby boomer arrive and 
outnumber our nation's youth in the next 10 to 15 years, the 
ESO ALERT officer will be an essential part of the law 
enforcement community, much like the juvenile officers are 
today.
    Chairman Breaux, and members of the Special Committee on 
Aging, I submit that providing for expanded training for law 
enforcement officers to address the growing needs of a rapidly 
aging population is clearly necessary to address the growing 
problem of physical and sexual abuse in residential care 
facilities.
    I look forward to working with you and I stand ready to 
take your questions.
    [The prepared statement of Mr. Fuselier and related 
material follow:]
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    The Chairman. Sheriff Fuselier, thank you for a really 
terrific statement and a very good story.
    Mr. Blanco, Henry Blanco, we are pleased to receive your 
testimony.

 STATEMENT OF HENRY BLANCO, BOARD MEMBER, NATIONAL ASSOCIATION 
    OF ADULT PROTECTIVE SERVICES ADMINISTRATORS, PHOENIX, AZ

    Mr. Blanco. Mr. Chairman, members of the committee, I would 
like to extend congratulations to you and the committee for 
providing a forum to discuss this serious issue. I am the 
Program Administrator for the Aging and Adult Administration 
within the Arizona Department of Economic Security. We are also 
the designated unit on aging under the Older Americans Act.
    The Chairman. Mr. Blanco, speak up a little bit and get 
that mike a little bit closer. It does not pick it up too well. 
Maybe push it down a little bit. I think it is a little too 
high. There you go.
    Mr. Blanco. However, today I am testifying before you as 
representative of the National Association of Adult Protective 
Service Administrators, or NAAPSA.
    The association represents Adult Protective Services, APS, 
programs nationwide by providing advocacy, training, research 
and innovation in the field of APS. All states in our union 
have identified APS programs. However, there is no Federal law 
that provides direction for APS. As a result, program 
parameters are entirely up to each state.
    Some APS programs are not involved in investigating 
allegations of abuse in long-term care facilities. Adult 
Protect Services are those services provided to elderly and 
disabled adults who are in danger of abuse, neglect or 
exploitation, and who are unable to protect themselves and have 
no one to assist them.
    It is estimated in the United States, two million older 
persons and persons with disability are abused, neglected or 
financially exploited each year. Most experts believe this 
number may be only the tip of the iceberg since many victims 
are unable to report their abuse and have no one to do so for 
them.
    According to the most recent figures from the National 
Center for Health Statistics, there are currently 16,700 
nursing homes in the United States with 1.8 million beds 
serving 1.6 million residents. Of these homes, 95.6 percent of 
them are certified for Medicaid and/or Medicare participation.
    Without question, the physical and sexual abuse of our 
elders in long-term care facilities must be highlighted and 
addressed with all possible resources. I would like to provide 
you an example of three cases that APS is involved in, and I 
have further examples in my written testimony.
    The first case was an 64-year-old woman who was placed in a 
long-term care facility. The client was to have a diagnostic 
test, a barium enema; the doctor had ordered one tap water 
enema to be given the night before. The client, however, was 
not an easy person to get along with, often demanding and 
belligerent. Two LPNs decided to get even with the client 
because of her behavior and gave her 15 enemas with 
approximately three feet of tubing completely inserted into her 
rectum.
    None of this would have come to light if the client had not 
complained that the nurses had verbally abused her. The case 
took 3 years to get to court.
    In a second case, an 85-year-old woman was raped at a local 
nursing home. She was alert, oriented and competent. The client 
said the male caregiver had raped her. A long-term care 
facility chose not to believe her. Instead gave her two 
Tylenols, told her to go bed, get a good night sleep and they 
would discuss it in the morning. Another source in the facility 
reported the incident to APS and to law enforcement.
    The local law enforcement Sex Abuse Unit was able to 
retrieve the sheets. Semen was found on the sheets. She had 
been raped. The certified nurse's assistant was arrested, tried 
and sent to jail.
    In a third case, a 74-year-old woman was raped by a CNA. 
Another staff person saw the CNA with his pants down around his 
ankles and asked what was going on? The CNA said he was 
``adjusting himself.'' The victim unfortunately was demented, 
unable to communicate. Rape could not be substantiated and 
charges were not filed.
    These cases are complex and involve the necessary 
coordination of many different jurisdictions and agencies. 
Coordination between APS, law enforcement, regulatory agencies, 
professional licensing boards, long-term care ombudsman 
programs, Medicaid fraud units, to name a few, are critical in 
successfully addressing these issues.
    There are several initiatives that we would recommend. My 
full statement includes additional recommendations. I would 
like to highlight a few of them. The first one as the 
congressional report indicates, salary and training for 
caregivers is a major issue. The issue of salaries, other 
benefits and working conditions and their relationship to 
quality must be addressed.
    Second, many states have mandatory reporting laws. Some 
states provide protection from civil or criminal liability for 
the reporting source. Other states protect the reporting source 
and retribution by their employer for reporting to APS or law 
enforcement. These protections and requirements should be 
available nationwide.
    Third, the Social Services Block Grant is the only fund 
source of Federal funding that provides special funds for the 
delivery of adult protective services. SSBG has been reduced 
over the past few years from 2.8 billion to 1.7 billion. 
Thirty-one states depend on these funds to provide protective 
services to victims like those I have described.
    Although the president's budget for fiscal year 2003 holds 
SSBG at 1.7 billion, we are heartened by the recent news that 
the White House is supportive of Senator Lieberman's and 
Santorum's care legislation that would restore SSBG funding on 
a temporary basis. Their bill is Senate bill 1924.
    Fourth recommendation, we recommend that we provide a 
dedicated funding source for the expansion, enhancement and 
development of services for a nationally funded APS program.
    Fifth recommendation would be to strengthen the 
requirements for fingerprinting and background checks for all 
employees of long-term care facilities. A major obstacle in 
this area is the expense and the amount of time required for 
fingerprint clearances.
    A sixth recommendation is to recognize that physical and 
sexual abuse occurs at all levels of care, and most be 
aggressively addressed regardless of where it occurs.
    A seventh recommendation would be to review Federal 
regulations, both programmatic and funding, to ensure that 
obstacles to coordinating and cooperation are not created for 
the many state and Federal agencies involved in long-term care 
facilities.
    One of the areas to review is the ability to share 
information, which may be essential but considered 
confidential. Adults served by Adult Protective Services are 
among this country's most vulnerable citizens. Those in our 
nation's long-term care facilities are often most isolated.
    They need our help. They deserve your attention, and they 
have earned the right to be safe in their older years 
regardless of where they reside. Mr. Chairman, I would like to 
submit my full testimony for the record. Thank you.
    The Chairman. Without objection, the whole statement, of 
course, will be made part of the record.
    [The prepared remarks of Mr. Blanco follow:]
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    The Chairman. Mr. Blanco, if you would kind of pass that 
mike over to Ms. Holloway so she will be able to give us her 
testimony, we would appreciate it.
    Ms. Holloway, thank you for being with us.

 STATEMENT OF DELTA HOLLOWAY, RN, BOISE, ID, ON BEHALF OF THE 
                AMERICAN HEALTH CARE ASSOCIATION

    Ms. Holloway. Thank you. Good afternoon.
    The Chairman. Same thing, these mikes. You got to really 
kind of get close to them to make them really work well.
    Ms. Holloway. OK. We will try to do this. OK. Good 
afternoon, Senator Breaux and committee members. Thank you for 
inviting me this afternoon to testify before you. My name is 
Delta Holloway and I have worked with the elderly and the frail 
for the last 25 years. I am a registered nurse. I am a nursing 
home administrator. I have served my profession as the Director 
of Nursing and I currently am the President and Quality 
Assurance Officer for Western Health Care in Boise, ID.
    I am testifying today on behalf of the American Health Care 
Association. AHCA represents over 12,000 long-term care 
facilities, but most importantly these facilities care for over 
one million patients.
    First, I must say that the examples of abuse, the many 
cases of abuse that we have heard today, are utterly 
deplorable. Incidences like these just must be prevented. I 
want to say for the record on behalf of myself, AHCA and all of 
the caregivers, criminal acts while rare in nursing homes must 
be prosecuted to the fullest extent of the law.
    It is important that we ensure the public is aware that 
these terrible situations are by far the exception and not the 
rule. The report released today by the General Accounting 
Office raises several serious issues and makes very many sound 
recommendations. We concur with each and every one of GAO's 
recommendations.
    To be most effective, providers need two things. We need a 
clear definition and process for abuse, and we need partnership 
with law enforcement. Yes, it is important to recognize our 
residents have medical conditions that make some of the 
activities of daily living very difficult. Some medically 
necessary clinical procedures involve therapeutic contact and 
oftentimes that contact might cause pain.
    But therapeutic contact is not abuse! A definition that 
distinguishes between appropriate, although uncomfortable, care 
and contact and abuse must be established.
    For an example, I provided care to an elderly woman with 
significant dementia and difficult behavioral issues. My 
patient acted out and was abusive to her caregivers. She often 
refused meals and her care when she did not take her routine 
medications. When she was on the medications, she was much 
happier and she truly did enjoy a better quality of life.
    On one occasion, one of my registered nurses attempted to 
force her mouth open to administer the medication. A certified 
nursing assistant witnessed this act and reported it to me 
immediately. I called the survey agency immediately and started 
my own investigation.
    I suspended the nurse with pay until I could complete a 
further investigation. After our investigations, the 
facilities, the survey and certification agency, and in this 
case the state board of nursing, the state board did not revoke 
her license. However, I did terminate her.
    Second, providers need to be acknowledged as full partners 
with state agencies and law enforcement in the abuse 
prevention, reporting and investigation process. A system that 
is not adversarial and views providers as a part of the 
solution would be far more effective and much more beneficial 
to what matters, and that is our patients.
    Nursing homes are required to report all incidents of 
abuse, or suspected abuse, within 24 hours, to conduct an 
investigation and to give a written report to survey and 
certification agency within 5 days and other state agencies in 
some states.
    Among the 50 states, there are many different reporting 
requirements that are probably in need of standardization. 
Streamlining and standardizing the process so that providers 
report an allegation of abuse to the state survey agency would 
eliminate confusion among consumers, patients, and providers. 
As I said, we wholeheartedly agree with the recommendations 
from the GAO report.
    We do have several suggestions that might even strengthen 
those. First, there should be one single point of contact to 
make a report, preferably to the state survey agency. There 
would be one number listed.
    Second, we believe that education and training of local law 
enforcement and Medicaid Fraud Control Units on the nursing 
home environment, on the patients that we serve, and on the 
staffing is highly needed.
    Finally, we need a precise definition of what is abuse that 
will lead to a better understanding of the problem and more 
successful targeting and eventually the prosecution of those 
that are truly guilty.
    AHCA has been working with Senator Kohl to develop a 
national criminal background system check. Any such system 
should act quickly, and it should include all health care 
settings. This should also be funded 100 percent so as to not 
take away the resources for our primary mission which is 
patient care. We support Senator Kohl's legislation and we will 
work toward passage of this bill.
    Last, but certainly not least, government must be a partner 
in facilitating staffing of our homes. CMS just finished a 
report that documents the need of over 400,000 additional 
nursing staff right now. Unfortunately, government has not met 
its responsibility for funding this level of staff, nor has it 
helped to develop the needed workforce.
    In summary, thank you for the invitation to testify and for 
treating providers as a part of the solution to protect 
residents, to prevent abuse, and to report the incidents. Mr. 
Chairman, we care for our patients all day everyday, both 
professionally and personally.
    No one wants to prevent abuse or punish or remove 
perpetrators more than we do. We stand ready to work with 
Congress, the administration, local law enforcement, ombudsmen, 
adult protection, and any other entity that will allow us to be 
a part to protect the vulnerable seniors in our country.
    Thank you for the opportunity to testify on this very 
critical topic.
    [The prepared statement of Ms. Holloway follows:]
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    The Chairman. Thank you, Ms. Holloway, and thank all of our 
panel for a very enlightening, very informative, and I think 
very helpful testimony. Let me begin with Ms. Aronovitz on 
behalf of GAO.
    As I take it, the study that GAO did for the committee 
involved surveys in Georgia, Pennsylvania and Illinois. Were 
those the three states?
    Ms. Aronovitz. We looked at 158 cases of reported abuse in 
those three states. That is correct.
    The Chairman. I take it those states were selected to try 
and give us an indication of how things would be on a national 
level?
    Ms. Aronovitz. Absolutely. We had no intention of doing an 
evaluation of those particular three states. As a matter of 
fact, what we tried to do is use those states to learn about 
some of the systemic problems that occur nationwide.
    The Chairman. You have helped us a great deal. In the three 
states that you all surveyed at GAO, were there found to be 
requirements in the law or by practice of a requirement that 
the nursing homes report abuse that occurred in the home that 
could be potentially criminal to law enforcement or was it a 
requirement to report to the health officials of the state or 
were there no requirements at all?
    Ms. Aronovitz. There is actually no Federal requirement 
that nursing homes report abuse to local law enforcement or 
their Medicaid Fraud Control Units, who are the state 
prosecutory unit or agency.
    The Chairman. That was in those three states or is that 
nationwide?
    Ms. Aronovitz. No. Nationwide there is no Federal 
requirement. Now what we found in the three states that state 
law often requires this type of reporting, but we also found 
that it does not always happen in a timely way.
    The Chairman. You mentioned the average time would be some 
5 to 6 months in some cases to report an abuse case?
    Ms. Aronovitz. That was the situation where a nursing home 
reported abuse to the state and the state decided to cite a 
nurse aid and put their name in the registry. We found cases 
where there was delayed reporting by the nursing home in about 
half the cases that we looked at where nursing homes were 
supposed to report to the state.
    Nursing homes are supposed to report within 24 hours and 
that is defined as the day of or the day after the incident 
took place. But we found in about half of the cases that we 
looked at that reporting took place a week or 2 weeks later and 
actually we found eight cases where the nursing home reported 
the incident over 2 weeks late.
    The Chairman. Obviously the longer the time between the 
incident and the reporting, it makes it much more difficult if 
not impossible to investigate.
    Ms. Aronovitz. Also, it keeps residents who are subject to 
abuse vulnerable because no one is protecting them during that 
time.
    The Chairman. One of the things I mentioned is the thing 
that we did--I mean the rule that we passed back in--when was 
this--1998, with regard to the attorney general, FBI being able 
to do background checks on employees in these type of 
facilities. It actually says that the attorney general may 
charge a reasonable fee not to exceed $50 per request to any 
nursing facility or home health care agency requesting a search 
and exchange of records pursuant to this section, and do you 
find that this is being done by any of the facilities that you 
worked with?
    Ms. Aronovitz. Actually, there is no Federal requirement 
that a nursing home do a background check. There are state 
requirements that that happen. The Federal requirement is that 
nursing homes do not hire employees with a criminal background 
that has a history of abusing nursing home residents.
    The Chairman. But the information we have is that the 
states are not really availing--I mean the various institutions 
are not really taking advantage of this provision that would 
allow them to do these background checks?
    Ms. Aronovitz. That is exactly right. We found in the three 
states that even though there are state laws requiring criminal 
background checks, they are usually done only at the state 
level, and when we talked to the FBI, 29 states do not really 
avail themselves of Federal FBI checks, nor do other states 
routinely.
    The Chairman. So obviously, if a person was a criminal in 
one state and went to work in a second state, that state check 
would not disclose that they were, in fact, hiring a criminal?
    Ms. Aronovitz. In most cases that is true. Once in awhile, 
the state would require the nursing home to go to another state 
if they know that in the last 2 years an applicant worked in a 
different state. But typically that would not be the case and 
the information about background, criminal background, in 
another state would not be reported.
    The Chairman. OK. This investigation is very helpful, but 
an investigation without follow-up and recommendations and 
actions by Congress is not worth very much. Can you summarize 
for the committee the recommendations that GAO has presented to 
this committee?
    Ms. Aronovitz. Absolutely. The first one is that there be a 
Federal requirement that the state survey agencies immediately 
contact local law enforcement or the MFCUs when there is a 
confirmed allegation of abuse.
    The Chairman. That is--I do not want to interrupt you--but 
that is law enforcement as opposed to a social worker or the 
state health agency?
    Ms. Aronovitz. That is correct. The nursing homes already 
have to report to the state survey agency. We think that there 
should be a requirement that this also be reported immediately 
to the local law enforcement of MFCU.
    The second is that the Centers for Medicare and Medicaid 
Services need to convince states to make it much easier to know 
how to report abuse, and one suggestion, having one phone 
number would be very useful. We found in looking at phone books 
in nine cities in the three states that it was very common to 
get phone numbers that look like you could report abuse. For 
instance, numbers in the book that said ``senior help line'' or 
``fraud and abuse line,'' and in fact, those numbers had no 
jurisdiction or ability to take the calls at all or complaints.
    The third one would be to clarify the definition of abuse 
so that all states would be applying that standard consistently 
and appropriately.
    The fourth one would be to assure that nursing homes do not 
hire people with criminal backgrounds, and, in fact, CMS needs 
to study the prevalence of this and to try to figure out other 
options for convincing states to assure that nursing homes are 
not, in fact, hiring people with criminal backgrounds, and also 
we feel very strongly that we need to shorten the time period 
between the time a state survey agency decides to cite a nurse 
aide with abuse and the time it actually gets reported to the 
registry.
    The opportunity there to not disturb due process would be 
at the beginning of the process. Right now there is no 
requirement that a state survey agency investigate the case and 
make a decision about whether to cite a nurse aid within any 
reasonable timeframe. In addition, at the end of the process, 
once the hearing takes place, there is no requirement that the 
hearing officer make a decision and report those findings 
immediately.
    The Chairman. Thank you very much for that very good 
summary.
    Ms. Aronovitz. You are welcome.
    The Chairman. Sheriff Fuselier, I am really proud of your 
testimony. I think this is an indication of one example when 
our state has done a very credible job. You can be very proud 
of the leadership role that you have played in putting this 
process together, and I am just looking at the map you have 
here of where we have the ALERT officers. It covers almost the 
entire State of Louisiana, and where you have the elderly 
services officers in addition in some parts.
    I mean can you tell me the Triad Program, I mean it is an 
association that was really put together through AARP and law 
enforcement officials and how does that structure work?
    Mr. Fuselier. Well, the Triad Program is a program with the 
sheriffs, the chiefs and the older American groups, generally 
AARP or the Council on Aging, where we come together and form a 
SALT council and get interested people who are interested in 
the prevention of the victimization of the elderly to actually 
sit down at a table and discuss the problems that we are 
having.
    This may include people from the nursing homes, clergy, 
anybody who provides this service to the seniors, and this is 
one way to pass information across. I think it was probably the 
forerunner of community oriented policing, because this 
happened before that.
    The Chairman. Ms. Aronovitz was talking in terms of there 
is a requirement that the nursing homes report abuse to the 
state health officials. You know there are several categories 
here and I think logic indicates, a common sense approach to 
this. You can have a nursing home that gives poor treatment. 
You can have a nursing home that the poor treatment becomes 
abuse. Then you can have a situation where the abuse is so 
clearly defined as a criminal act in the case of a person with 
a broken neck because they have been thrown against the wall, 
or a rape victim who suffered that indignity in a nursing home.
    Do we get that in Louisiana in the sense of are we having 
people from nursing homes reporting to law enforcement when 
there is a suspected case, not just of mistreatment, but I mean 
a criminal act that occurred? I mean there is a natural 
tendency for nursing homes to say, look, we are going to handle 
it internally. There is a natural tendency for police officers 
to say we have got enough problems controlling street crime. We 
do not have time to go into the nursing home. They will take 
care of it. How does it work in the real world?
    Mr. Fuselier. I do not think in Louisiana we have taken 
that position. I think our position is that we want to protect 
our elderly, and I think you can see from the testimony and the 
legislation that was enacted that we have taken steps to bring 
these people together to address the problem, exactly the 
problem that you have said, is that, you know, we want to make 
sure that the nursing homes are reporting, and I would say 
there are a number of cases probably that are not reported that 
should be.
    What we have, I think, is there was testimony we need that 
one number, and they would get back to local law enforcement, 
because I think sometimes we do have some of these things fall 
through the cracks, and not necessarily anyone's fault.
    The Chairman. Well, I am very proud of what you have done. 
I think the message that could come out from Louisiana, ``Don't 
mess with the elderly.'' Mr. Fuselier. That is exactly right.
    The Chairman. Ms. Holloway, in your testimony on behalf of 
the nursing home industry as well as your personal experiences, 
this is a difficult situation that needs to be addressed. I am 
very pleased that you have indicated the support of the 
industry for the recommendations from GAO, and I would say 
again that the vast majority of nursing home facilities provide 
very much needed service to people who sometimes are very 
seriously ill and need 24 hour a day, 7 day a week care.
    There will always be bad actors in any business, in any 
profession anywhere in the country. Our responsibility, 
industry's responsibility, is to come as close as we possibly 
can to eliminating it. All of these suggestions or some of them 
are costly, and I know that many of the nursing homes are 
operating on very narrow margins, many of which have gone under 
financially.
    You put cameras in nursing homes. That is going to be a 
huge expense. I would think that the background checks can be 
done at a minimum amount of cost, particularly with the FBI 
doing it. Nursing homes or anyone else in these type of 
situations dealing with vulnerable people should not hire 
people with criminal records in that area, and I am all for an 
individual's rights and responsibilities and everything else, 
but I do not want to see people who abuse people working in 
nursing homes. I mean that is just my common sense approach. I 
think the members of the committee would agree with.
    What I guess I would ask among other things would the 
industry support a requirement that these cases when they are 
found out not only be reported to a social worker or the state 
health institution, but also be reported to law enforcement? 
Because I take it that that is not now a Federal requirement. 
What is your comment on that?
    Ms. Holloway. I would support that, and I would think that 
if we had the one number and it did get reported to the 
licensure agency, it would be good if that agency would call 
the local police department.
    I will say that in my state in 1998, a law was passed that 
if there is a death or serious injury to an adult, a vulnerable 
adult, an elderly person, the nursing home, the physician, the 
family, whomever might be aware of that, needs to report to law 
enforcement within 4 hours.
    The Chairman. Let me ask. This is the real question here. 
We can have all the reporting requirements we want. How do we 
assure that when a criminal act occurs in a nursing home 
facility, that, in fact, someone in that facility reports it to 
criminal law enforcement authorities? I know we can have the 
rule.
    Ms. Holloway. Sure.
    The Chairman. The CMS, Center for Medicare and Medicaid 
Services, can adopt a resolution that is saying, look, the 
Federal Government tax dollars are paying most of the cost of 
operating the facilities, and we have now a national 
requirement that these things be reported if they occur within 
4 hours or within an hour, immediately, but if a nursing home 
decides we are going to handle this internally, it would be 
horribly embarrassing if we reported this.
    I think the opposite. I mean these things are going to be 
found out. We have seen it today. I mean all of these 
incidents, they tried to cover them up and people find out 
about it. Eventually it comes to light, and I would dare say 
that a nursing home that has tried to cover it up is going to 
look much worse in the eyes of the public and their 
constituents if they did not report it and take prompt action 
than one who admits it happened and reported it promptly to law 
enforcement.
    That is a better nursing home than one who does not report, 
but how do we do that? Do we have to have a policeman in every 
nursing home in this country?
    Ms. Holloway. I hope not.
    The Chairman. How do we do it?
    Ms. Holloway. I am happy to say, I do not like this because 
it is labor intense, but I am liking it more and more. In our 
state, we are asked by survey and certification to complete an 
incident report. That is a whole different form that we have to 
fill out than the record.
    First of all, if there is any resident to patient 
situation, abuse, or there is suspected abuse, we must call the 
survey and certification within 24 hours. I am proud to say 
that in our state we call them right away because we want them 
to be aware that there is a potential problem.
    We also call ombudsmen. We do not call adult protection 
unless a family member is involved. We are to complete this 
form and it gives the specifics about how we found the 
resident, our investigation, and we must talk to all levels of 
staff, nursing assistants, nurses, social workers, activity 
people, anyone that may have been involved with that resident, 
we must develop a plan of action so that this will not to the 
best of our ability happen again.
    The Chairman. I take it that in your state there is no 
legal requirement to report to law enforcement officials if the 
type of things happen in that nursing home that we heard about 
here today? Is there a legal requirement to do that?
    Ms. Holloway. If there is death or serious injury, we do.
    The Chairman. If there is death or serious injury, there is 
a legal requirement to report not just to the health department 
but to law enforcement?
    Ms. Holloway. In 4 hours.
    The Chairman. Within 4 hours.
    Ms. Holloway. Yes.
    The Chairman. OK. Thank you. I want to assure you certainly 
this senator's intent is to try and work with the industry. 
This is an important industry. It provides important services 
to millions of senior citizens. We have to assure that it is 
being done to the high quality standards that you spoke about 
here today and we are going to work with you all to ensure that 
that happens.
    It is like those first three people that came up indicated 
that we hear about this all the time and nothing gets done. 
Something will get done.
    Ms. Holloway. Senator, I believe something should get done.
    The Chairman. Thank you for that attitude.
    Ms. Holloway. I need to say that when the survey agency 
visits our facility, they read charts, they look for incident 
reports, and if from our call, they feel that something does 
not sound right, they come to the facility, even before the 5 
days when they have the full report. They call and see what 
kind of an effect has this situation had on the resident, and I 
will tell you that they will be out immediately if there has 
been an adverse reaction by the patient.
    The Chairman. Thank you very much for your testimony again.
    Ms. Holloway. OK.
    The Chairman. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman, and first let me 
tell you how much I appreciate your determination. As you know, 
this is not the first time this has come up. This is part of a 
pattern. We have talked about it now for several hours. Just as 
sure as the night follows the day, you have a report like this 
GAO report outlining the abuses, the industry and government 
pledge that there are going to be changes, and then a year or 
so later, there is going to be backsliding.
    I mean that is the pattern on this issue. Ms. Aronovitz, 
would you disagree with that?
    Ms. Aronovitz. No, I think it is very important that there 
be the types of fixes that will stick, and right now it is 
clear that there are a lot of administrative gaps and criminal 
protection gaps in the system, absolutely.
    Senator Wyden. I think we are going to have a bill and an 
ongoing effort led by our chairman that others of us are going 
to sponsor so that we can follow up. I want to ask some 
questions to sort of amplify on some of the points that you 
made, and I think your report is superb.
    So here the country sits literally 20 years into this, the 
Federal Government having spent billions of dollars in Medicare 
and Medicaid, and the Federal Government does not require 
nursing homes to call police where there is a suspicion of a 
crime. Any sense how that could possibly have happened? Did the 
Federal Government just miss it or did people sit around and 
say we cannot afford this rule? What did you find on this point 
with respect to how something like that which seems like such a 
glaring flaw, how did it happen?
    Ms. Aronovitz. The Federal Government does require some 
administrative type procedures that ultimately might get at a 
problem in which a law enforcement entity ultimately gets 
involved, but there are too many steps and, in fact, it is too 
circuitous in terms of how that works. For example, a state 
agency could, in fact, immediately call law enforcement agency 
if it considers abuse that is reported to it by the nursing 
home to be severe enough, but it is not absolutely required.
    The MFCU, the Medicaid Fraud Control Unit, in many states 
is responsible for prosecuting in a criminal sense abuse, but, 
in fact, the state survey agencies sometimes screen the 
allegations and only refer the ones that they think are the 
most severe or the most prosecutable.
    There is an example in Illinois where every case of abuse 
that we are talking about at the severity we are talking about 
automatically goes to the Medicaid Fraud Control Unit and that 
unit with its professional prosecutors and criminal 
investigators review and screen those cases to decide which 
ones to pursue.
    We found that there was a much higher conviction rate per 
capita in that state when that process was used. The one thing 
I should say is that different states have different laws that 
sometimes are pretty tough in terms of their requirements.
    But they vary extensively across states in terms of what is 
required and what types of employees are included. For 
instance, in one state we found that nursing homes must report 
to the local law enforcement entities if it has to do with a 
criminal abuse from a caregiver. In other places, the law 
refers to all nursing home employees.
    There is enough gaps in state law and enough that we do not 
know about those state laws where there should be some Federal 
consistent oversight.
    Senator Wyden. I think what I was after, is how in the 
world could the Federal Government have allowed this to happen? 
I mean I find it hard to believe somebody was sitting up there 
at CMS or its predecessor and said, you know, let us just be 
rotten to seniors today and ignore their needs, but maybe you 
can enlighten us as to how this could have happened?
    Ms. Aronovitz. I think that CMS depends very much on the 
survey and certification agencies. As Ms. Holloway was 
describing, the surveys when they are conducted, either 
periodically or when a survey agency finds that there is 
serious abuse, goes out and does an investigation. When these 
surveyors go out, they look at the way nursing homes conduct 
their hiring practices and conduct their own investigations 
into these instances, and supposedly they will be checking to 
assure that nursing homes are following the administrative 
processes, and in cases where there were several allegations of 
criminal behavior, that those got reported. So I think the 
Federal Government's relying on these surveys to identify these 
cases does not always happen.
    Senator Wyden. Thank you. I think that addresses my 
concern. Let me ask you about some of your other findings, and 
again what I hope here is to just amplify a little bit so that 
we get a sense of why some of these problems are occurring. You 
cite the fact that patients and relatives are reluctant to 
report abuse and obviously there is fear of retribution, fear 
that patients who have nowhere else to go will be pushed out of 
the facilities.
    What did you hear from the patients and the families on 
this point? Particularly did the patients and families tell 
your investigators we just do not think they are going to 
prosecute and we do not think they are going to enforce the 
laws, so that is why we are not speaking out?
    Ms. Aronovitz. Actually, our investigation focused mostly 
at the overseers and the experts in the field, and we did talk 
to quite a few experts who look at this problem and also the 
Department of Justice which also believes that this is 
underreported, and one of the things that we find are that the 
bond or the relationship that builds between a family and the 
caregivers of a loved one is very, very strong.
    Sometimes we heard that the family will not even believe or 
accept the fact that a caregiver could be abusive and sometimes 
when a loved one comes to the nursing home and sees that there 
is a bruise, there is a lot of mystery around how that bruise 
happened, and sometimes the nurse aides and other employees are 
given the benefit of the doubt.
    As you mentioned, in other cases, the family is afraid that 
the loved one might be asked to leave the nursing home and 
another place will have to be found, and in some cases there 
are just very worried about accusing the nurse aide if, in 
fact, they do not have all the facts.
    These type of instances usually occur in the privacy of a 
resident and a caregiver or another nursing home employee. 
There is not usually a lot of witnesses to this, so there is a 
lot of mystery around some of these abusive situations have 
taken place.
    Senator Wyden. Just a couple of other questions. What about 
the findings of GAO with respect to the role of the nursing 
home administrator? What I have found, because I was the public 
member, as a Gray Panther co-director before I was elected to 
the House, I was the public member on the Nursing Home Board of 
Examiners at home in Oregon, and I think that so much of what 
happens in a nursing home is set by the tone of the 
administrator.
    I gather that you all made some findings that the nursing 
home managers are not exactly proactive on a lot of these 
matters as well. Can you amplify on that?
    Ms. Aronovitz. Yeah, we cannot project or talk about the 
universe of all nursing homes, and it is very important that we 
understand that, because there are tremendous nursing homes and 
nursing home administrators----
    Senator Wyden. Absolutely.
    Ms. Aronovitz [continuing.] Who have devoted their life to 
protecting residents. But in our sample, we looked at 158 
cases, 111 of them were instances where a nursing home found 
out about an abuse situation, and we could determine the dates 
that that abuse situation occurred. In about half the cases, in 
54 of those cases, the nursing home administrator did not 
notify the state survey agency within the 24 hour required 
timeframe.
    In 37 of those cases, the state survey agency was notified 
2 to 7 days late. In nine instances, they were notified a week 
to 2 weeks late, and as I said earlier, in eight of those 54 
cases, the nursing home administrator notified the state survey 
agency over 2 weeks late.
    Senator Wyden. It is an important point and one we will 
want to ask you more about as we move to trying to put together 
a reform effort, because clearly the tone starts at the top, 
and you have addressed some shortcomings there.
    One question for you, Ms. Holloway, if I could. What would 
you say today are the most important self-policing efforts that 
the association has taken on to date? That is important because 
obviously you want to have as much self-policing as you can so 
that any Federal legislation is targeted to the areas where it 
is most needed. What would you say are the most important self-
policing initiatives that the association has taken on to date?
    Ms. Holloway. I just have to say one more time, we just 
cannot tolerate this abuse. I believe it an honest statement 
from us that we wish to work with the recommendations of the 
GAO report and do something about a national registry that 
would indicate that a staff member should or should not be 
hired. Right now that is only certified nursing assistants, and 
should be broadened to others.
    The other very, very important issue is the criminal 
background check. I think that we have been policing ourselves 
in some states better than others perhaps. Some do do the 
Federal criminal background check. It costs about $50 an 
employee and you get the results in two to 3 weeks, where the 
state check costs $10 and you get it in five to 7 days.
    Senator Wyden. I want to ask one question for the sheriff 
if I could, and thank you for your excellent testimony and the 
service that you provide. I have always felt with law 
enforcement that at some level it comes down to a question of 
priorities.
    Law enforcement people are incredibly busy, and everybody 
is sitting there every single day having to juggle all of these 
issues that are so important in terms of protecting the public 
health and safety.
    What are your thoughts on how we make this issue, the elder 
abuse question, a higher priority in terms of law enforcement? 
Certainly, the dollars for training can help, but the end of 
the day, this is going to be about priorities and making this a 
major one.
    Mr. Fuselier. Well, Senator, this is one of the goals of 
the ESO officer, that we would have this person that would 
specialize in doing that. However, in all cases that is not 
necessarily his only responsibility, but it would be his, I 
guess, top priority, the same as we mentioned with juvenile 
officers. You have to take the time to do it. With our growing 
population, we are going to have no choice. We have to 
recognize the fact that servicing our elderly is a top 
priority.
    Senator Wyden. Mr. Chairman, thank you.
    The Chairman. Well, thank you, Senator Wyden, for your 
involvement, your continued involvement. I want to thank this 
panel. You all have been extremely helpful. We have got some 
good ideas, good suggestions, and thank the first panel once 
again. With those two panels, that will conclude this hearing. 
The committee will be adjourned.
    [Whereupon, at 3:55 p.m., the committee was adjourned.]
                            A P P E N D I X

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