Nursing Homes: More Can Be Done to Protect Residents from Abuse
(01-MAR-02, GAO-02-312).
Often suffering from multiple physical and mental impairments,
the 1.5 million elderly and disabled Americans living in nursing
homes are a highly vulnerable population. These individuals
typically require extensive help with daily living, such as such
as dressing, feeding, and bathing. Many require skilled nursing
or rehabilitative care. In recent years, reports of inadequate
care, including malnutrition, dehydration, and other forms of
neglect, have led to mounting scrutiny from state and federal
authorities, which share responsibility for overseeing the
nation's 17,000 nursing homes. Concerns have also been growing
that some residents are abused--pushed, slapped, or beaten--by
the very individuals to whom their care has been entrusted. GAO
found that allegations of physical and sexual abuse of nursing
home residents are not reported promptly. Local law enforcement
officials said that they are seldom summoned to nursing homes to
immediately investigate allegations of abuse and that few
allegations are ever prosecuted. Some agencies use different
policies when deciding whether to refer allegations of abuse to
law enforcement. As a result, law enforcement agencies were never
told of some incidents or were notified only after lengthy
delays. GAO found that federal and state safeguards intended to
protect nursing home residents from abuse are inadequate. No
federal statute requires criminal background checks for nursing
home employees. Background checks are also not required by the
Centers for Medicare and Medicaid Services, which sets the
standards that nursing homes must meet to participate in the
Medicare and Medicaid programs. State agencies rarely recommend
that sanctions be imposed on nursing homes. Although state
agencies compile lists of aids who have previously abused
residents, which can prevent an aide from being hired at another
nursing home, GAO found that delays in making these
identifications can limit the usefulness of these registries. GAO
summarized this report in testimony before Congress; see
GAO-02-448T.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-312
ACCNO: A02840
TITLE: Nursing Homes: More Can Be Done to Protect Residents from
Abuse
DATE: 03/01/2002
SUBJECT: Crime prevention
Crimes or offenses
Elder care
Health care personnel
Law enforcement
Nursing homes
Abuse
Georgia
Illinois
Medicaid Program
Medicare Program
Pennsylvania
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GAO-02-312
United States General Accounting Office
GAO
Report to Congressional Requesters
March 2002
NURSING HOMES
More Can Be Done to Protect Residents from Abuse
GAO-02-312
Contents
Letter
Results in Brief
Background
Delays in Reporting Abuse Preclude Immediate Response by Law
Enforcement or Survey Authorities Abusive Nursing Home Staff Difficult to
Prosecute Measures to Safeguard Residents from Abusive Employees Are
Ineffective Conclusions Recommendations for Executive Action Agency Comments
and Our Evaluation 1
4 6
9 14
17 25 27 27
Appendix I Scope and Methodology
Appendix II Comments from the Centers for Medicare and Medicaid Services
Appendix III GAO Contact and Staff Acknowledgments
Related GAO Products
Tables
Table 1: Timeliness of Complaints Submitted to State Survey Agencies in 1999
and 2000 10 Table 2: Timeliness of Notifications to State Survey Agencies in
1999 and 2000 11 Table 3: Cases Referred by Survey Agencies to Their
Respective
MFCUs in 1999 16 Table 4: Number of Homes Cited for Abuse-Related
Deficiencies 20 Table 5: Cases of Alleged Abuse Involving Nurse Aides 23
Abbreviations
AAHSA American Association of Homes and Services for the Aging
AHCA American Health Care Association
CMS Centers for Medicare and Medicaid Services
DHR Georgia Department of Human Resources
DOH Pennsylvania Department of Health
DOJ Department of Justice
FBI Federal Bureau of Investigation
HCFA Health Care Financing Administration
HHS Department of Health and Human Services
IDPH Illinois Department of Public Health
MFCU Medicaid Fraud Control Unit
RN registered nurse
United States General Accounting Office Washington, DC 20548
March 1, 2002
The Honorable John Breaux
Chairman
Special Committee on Aging
United States Senate
The Honorable Charles E. Grassley
Ranking Minority Member
Committee on Finance
United States Senate
The 1.5 million elderly and disabled individuals residing in nursing homes
are a highly vulnerable population. They often have multiple physical and
cognitive impairments that require extensive assistance in the basic
activities of daily living, such as dressing, feeding, and bathing. Many
require skilled nursing or rehabilitative care. In recent years, increased
attention has been focused on the quality of care afforded nursing home
residents. Concerns with inadequate care involving malnutrition,
dehydration, and other forms of neglect have contributed to mounting
scrutiny from state and federal authorities. There is also growing concern
that some residents are abused-pushed, slapped, beaten, and otherwise
assaulted-by the individuals to whom their care has been entrusted.
Accordingly, the ability to both apprehend those who have abused nursing
home residents and prevent further abuse has generated considerable
interest.
While nursing homes are expected to keep residents safe from harm, there
are a variety of federal, state, and local agencies-including law
enforcement entities-that typically play a part in investigating instances
of resident abuse. The federal government and the states share oversight
responsibility for the almost 17,000 nursing homes in the nation. The
recently renamed Centers for Medicare and Medicaid Services (CMS),
formerly the Health Care Financing Administration (HCFA)1-within the
Department of Health and Human Services (HHS)-is responsible for
1On June 14, 2001, the Secretary of Health and Human Services announced that
the name of the Health Care Financing Administration had been changed to the
Centers for Medicare and Medicaid Services. In this report, we will refer to
HCFA where our findings apply to operations that took place under that
organizational structure and name.
establishing standards that nursing homes must meet to participate in the
Medicare and Medicaid programs. CMS contracts with state agencies, such as
departments of health, to conduct annual inspections-called surveys- of
nursing homes to certify that they are eligible for Medicare and Medicaid
payments. These state survey agencies are also responsible for investigating
complaints they receive about the care nursing homes provide. In some
instances, state survey agencies may notify state or local law enforcement
agencies to conduct criminal investigations involving resident abuse.
Depending on the policy of the survey agency, it may opt to involve the
state's Medicaid Fraud Control Unit (MFCU), typically an investigative
component within the state's Office of the Attorney General, or the
appropriate local police department in investigating abuse allegations.2
We have previously reported on deficiencies in the oversight of the quality
of care provided to nursing home residents, noting weaknesses in states'
complaint investigations, annual surveys, and enforcement actions. For
example, in March 1999, we reported that inadequate state procedures and
limited HCFA guidance and oversight resulted in, among other things,
extensive delays in investigating serious complaints alleging harmful
situations.3 Also in March 1999, we reported that state surveys identified
deficiencies that harmed residents or placed them at risk of death or
serious injury in more than one-fourth of nursing homes nationwide.4
Moreover, sanctions that HCFA initiated against a majority of these homes
for noncompliance with federal standards were often not implemented and
generally did not ensure that homes maintained compliance with standards.
More recently, in September 2000, we reported that, although HCFA had begun
requiring states to investigate complaints alleging harm
2MFCUs conduct investigations into criminal activity in the Medicare and
Medicaid program. In some states, MFCUs may be located in other agencies,
such as the state police, instead of the Office of the Attorney General.
3U.S. General Accounting Office, Nursing Homes: Complaint Investigation
Processes Often Inadequate to Protect Residents, GAO/HEHS-99-80 (Washington,
D.C.: Mar. 22, 1999).
4U.S. General Accounting Office, Nursing Homes: Additional Steps Needed to
Strengthen Enforcement of Federal Quality Standards, GAO/HEHS-99-46
(Washington, D.C.: Mar. 18, 1999).
within 10 working days of their receipt, states were not consistently
meeting this time frame.5
In response to your concerns with the adequacy of protections afforded
nursing home residents and the responsiveness of federal, state, and local
agencies to allegations of resident abuse, we (1) determined whether
allegations of abuse are reported promptly to local law enforcement and
state survey agencies, (2) assessed the extent to which abusers are
prosecuted and the impediments to successful prosecutions, and (3) evaluated
whether sufficient safeguards exist to protect residents from abusive
individuals.
To address these questions we limited our work to acts of alleged physical
and sexual abuse committed by nursing home employees against nursing home
residents. We did not address other forms of abuse such as neglect or verbal
abuse nor did we examine instances of nursing home residents abusing other
residents. We interviewed CMS officials and reviewed agency policies and
procedures for overseeing nursing home care quality. We visited three states
with relatively large nursing home populations- Georgia, Illinois, and
Pennsylvania. During these visits, we interviewed state officials-including
those in survey agencies and MFCUs-who are responsible for responding to,
and investigating, allegations of abuse. We also reviewed relevant federal
laws and regulations, as well as the state laws and regulations pertaining
to these three states.
To learn more about the manner in which abuse investigations are conducted,
we judgmentally selected and reviewed files documenting Georgia, Illinois,
and Pennsylvania state survey agency investigations of 158 physical and
sexual abuse allegations, mostly from 1999 and 2000. Our findings cannot be
generalized or projected. Where the files indicated that states had cited
the nursing homes for deficiencies, we obtained subsequent surveys conducted
to determine what, if any, sanctions had been imposed. We also determined
the states' policies and procedures concerning employees with criminal
backgrounds and examined records of survey agencies' actions related to
nurse aides who had allegedly abused residents. All three states we visited
had established dedicated telephone lines exclusively devoted to reporting
complaints. We called
5U.S. General Accounting Office, Nursing Homes: Sustained Efforts Are
Essential to Realize Potential of the Quality Initiatives, GAO/HEHS-00-197
(Washington, D.C.: Sept. 28, 2000).
these lines to verify that they were working properly and to verify that
complaints of physical and sexual abuse would be accepted. We also made
similar calls to other organizations we identified in local Georgia,
Illinois, and Pennsylvania telephone books to determine whether these
entities would accept complaints regarding the abuse of nursing home
residents or make referrals to other organizations. Finally, to learn about
law enforcement's role in responding to and investigating abuse allegations,
we interviewed officials in these states who represented 19 local police
departments and 4 local prosecutors' offices. See appendix I for more
detailed information on our scope and methodology
We conducted our work from July 2000 through February 2002, in accordance
with generally accepted government auditing standards.
Results in Brief
Allegations of physical and sexual abuse of nursing home residents
frequently are not reported promptly. Local law enforcement officials
indicated that they are seldom summoned to nursing homes to immediately
investigate allegations of physical or sexual abuse. Some of these officials
indicated that they often receive such reports after evidence has been
compromised. Although abuse allegations should be reported to state survey
agencies immediately, they often are not. For example, our review of state
survey agencies' physical and sexual abuse case files indicated that about
50 percent of the notifications from nursing homes were submitted 2 or more
days after the nursing homes learned of the alleged abuse. These delays
compromise the quality of available evidence and hinder investigations. In
addition, some residents or family members may be reluctant to report abuse
for fear of retribution while others may be uncertain about where to report
abuse. Although state survey agencies in the three states we visited had
designated telephone numbers for reporting abuse, we found it difficult to
identify these numbers in the government and consumer pages of local
telephone books for some of the major and mid-size cities in these states.
However, we did find a wide variety of other organizations that, by their
name, appeared to be able to address abuse complaints, but, in fact, had no
authority to do so. Although CMS requires nursing homes to post these
numbers, it is not clear that this ensures that residents and family members
have access to this information when it is needed. In recognition of the
need to better inform residents and family members about abuse reporting,
the agency initiated an educational campaign in 1998. The campaign included
development of a new poster with removable information cards containing
appropriate numbers for reporting abuse. Although a pilot test was
conducted, the poster has not been approved for distribution nationwide.
Few allegations of abuse are ultimately prosecuted. The state survey
agencies we visited followed different policies when determining whether to
refer allegations of abuse to law enforcement. As a result, law enforcement
agencies were sometimes either not apprised of incidents or received
referrals only after long delays. When referrals were made, criminal
investigations and, thus, prosecutions were sometimes hampered because
witnesses to the alleged abuse were unable or unwilling to testify. Delays
in investigations, as well as in trials, reduced the likelihood of
successful prosecutions because the memory of witnesses often deteriorated.
Safeguards to protect residents from potentially abusive individuals are
insufficient at both the federal and state level. There is no federal
statute requiring criminal background checks of nursing home employees nor
does CMS require them. Although the three states we visited required
background checks to screen potential nursing home employees, they do not
necessarily include all nursing home employees nor are they always completed
before an individual begins working. They also focus on individuals'
criminal records within the state where they are seeking employment.
Safeguards at the state level are also insufficient. While nursing homes are
responsible for protecting residents from abuse, survey agencies in the
states we visited rarely recommended that certain sanctions-such as civil
monetary penalties or terminations from federal programs-be imposed.
Twenty-six homes were cited for deficiencies related to abuse from the 158
case files we reviewed. The survey agencies recommended a civil monetary
penalty for 1 home, while the remaining 25 nursing homes faced less punitive
sanctions such as a requirement to develop corrective action plans. State
survey agencies also play a role in preventing homes from hiring potentially
abusive caregivers through the states' nurse aide registries. These
registries, among other things, identify aides that have previously abused
residents. A finding of abuse should prevent a home from hiring an aide.
However, delays in making these determinations can limit the usefulness of
these registries as a protective safeguard. In addition, findings of abuse
for several nurse aides could not be found in one state's Web-based
registry, compromising its protective value. As a result, aides who the
state survey agency had already determined had abused residents could have
been hired by unsuspecting nursing homes. Finally, none of the three states
we visited had a safeguard in place-similar to a nurse aide registry-to
professionally discipline those nursing home employees who do not need
certifications or licenses to perform their duties, such as maintenance or
housekeeping personnel.
Background
We are making recommendations to the CMS administrator to facilitate the
reporting, investigation, and prevention of abuse and thus help ensure the
protection of nursing home residents. In comments on a draft of this report,
CMS generally agreed with our recommendations and said that it is committed
to protecting nursing home residents from harm. It also elaborated on its
initiatives to ensure their safety and described steps it would take in
response to our recommendations.
Experts who have conducted studies on the issue of physical and sexual
abuse6 of nursing home residents have reported that it is a serious problem
with potentially devastating consequences.7 Nursing home residents have
suffered serious injuries or, in some cases, have died as a result of abuse.
Nursing homes are required to protect their residents from harm by training
staff to provide proper care and by prohibiting abusive behavior.
The vast majority of nursing homes participate in the Medicare and Medicaid
programs and were projected to have received about $58.4 billion from the
programs in 2001 for their care. State survey agencies-such as Georgia's
Department of Human Resources, Illinois's Department of Public Health, and
Pennsylvania's Department of Health- perform surveys at least every 15
months to assess nursing homes' compliance with federal and state laws and
regulations. These surveys are designed to determine whether nursing homes
are complying with Medicare and Medicaid standards. Nursing homes found to
be out of compliance are cited with deficiencies, which can result in
monetary penalties or other enforcement actions, including termination from
federal programs, depending on their severity.
In addition to periodic surveys, state survey agencies investigate
complaints of inadequate care, including allegations of physical or sexual
abuse. CMS requires that states designate a specific telephone number for
reporting complaints and that all nursing homes publicize these numbers.
6CMS defines abuse as the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting physical harm, pain,
or mental anguish (42 C.F.R. sect. 488.301).
7Ann W. Burgess, Elizabeth B. Dowdell, and Robert A. Prentky, "Sexual Abuse
of Nursing Home Residents," Journal of Psychosocial Nursing, 38, no. 6,
(June 2000); and Brian K. Payne and Richard Cikovic, "An Empirical
Examination of the Characteristics, Consequences, and Causes of Elder Abuse
in Nursing Homes," Journal of Elder Abuse and Neglect (1995).
Complaints can be submitted by residents, family members, friends,
physicians, and nursing home staff.8 In addition, advocates of nursing home
residents, such as long-term care ombudsmen, may file complaints.9 When
state survey agencies receive these complaints they are responsible for
investigating all allegations, determining if abuse occurred, and
identifying appropriate corrective actions.
CMS requires nursing home officials to notify the state survey agency of
allegations of abuse in their facilities immediately. Nursing homes are also
required to conduct their own investigations and submit their findings in
written reports to the state survey agency within 5 working days of the
incident. Depending on the severity of the circumstances, the state survey
agency may visit the nursing home to investigate the incident or wait until
the nursing home submits its report. Depending on the content of the
facility's report, the survey agency may request the home to conduct
additional work or the agency may investigate further on its own. If the
agency opts not to investigate further, it may still review the manner in
which the home conducted its investigation during the agency's next
scheduled survey of the home.
To protect residents from potentially abusive personnel, nursing homes must
adhere to federal and state requirements concerning hiring practices. CMS's
regulations require that facilities establish policies prohibiting
employment of all individuals convicted of abusing nursing home residents.
Although there is no CMS requirement to do so, the three states we visited
require nursing homes to conduct criminal background checks on some or all
prospective employees. All nursing homes must also verify with the relevant
state board of licensing the professional credentials of the licensed
personnel, such as registered nurses (RN), they hire.
In nursing homes, the primary caregivers are nurse aides. According to
federal law, each state must maintain a registry of all individuals who have
satisfactorily completed an approved nurse aide training10 and competency
evaluation program in that state. Before employing an aide, nursing homes
8The three states we visited require that certain individuals, such as
physicians, social workers, and law enforcement officers report suspected
abuse to state survey agencies.
9The Older Americans Act of 1965 (P.L. 89-73) established the Long-Term Care
Ombudsman program.
10Under certain circumstances, some individuals would be exempt from this
training, such as student nurses or nurses trained in another country.
are required to check the registry to verify that the aide has passed a
competency evaluation.11 Aides whose names are not included on a state's
registry may work at a nursing home for up to 4 months to complete their
training and pass a state administered competency evaluation.
CMS requires that if a state survey agency determines that a nurse aide is
responsible for abuse, neglect, or theft of a resident's property, this
"finding" must be added to the state's nurse aide registry. The inclusion of
such a finding on a nurse aide's record constitutes a ban on nursing home
employment.12 As a matter of due process, nurse aides have a right to
request a hearing to rebut the allegations against them, to be represented
by an attorney, and to appeal an unfavorable outcome. State survey agencies
are not responsible for disciplining other nursing home professionals, such
as RNs, who are suspected of abuse. Such personnel are referred to their
respective state licensing boards for review and possible disciplinary
action.
Local police departments may learn of suspected instances of resident abuse
and conduct criminal investigations. In addition, state survey agencies may
notify the state MFCU to pursue these allegations. States were provided
financial incentives to establish MFCUs as a result of the enactment of the
Medicare-Medicaid Anti-Fraud and Abuse Amendments to the Social Security Act
of 1977.13 Although one of their primary missions is to investigate
financial fraud and abuse in the Medicare and Medicaid programs, MFCUs also
have authority to investigate the physical and sexual abuse of nursing home
residents. MFCUs typically learn of such allegations by receiving referrals
from state survey agencies. If, after investigating an allegation, the MFCU
decides that there is sufficient evidence to press criminal charges, it may
prosecute the case itself or refer the matter to the state's attorney
general or a local prosecutor.
11Nursing homes in the states we visited have several means of checking the
nurse aide registries to determine whether aides are in good standing and
eligible for employment. Homes receive quarterly bulletins listing all
disqualified aides in their state. In addition, they may obtain this
information from their state survey agency's Web site or by calling the
survey agency.
12Nurse aides may petition the state to remove findings of neglect after one
year.
13P.L. 95-142.
Delays in Reporting Abuse Preclude Immediate Response by Law Enforcement or
Survey Authorities
Most of the local police departments in the three states we visited told us
that they were seldom summoned to a nursing home following an alleged
instance of abuse. Several police officials indicated that, when they were
called, it was sometimes after others had begun investigating, potentially
hindering law enforcement's ability to conduct a thorough investigation.
Instead, state survey agencies were typically notified of allegations of
abuse. However, these notifications were frequently delayed. Allegations of
abuse may not be reported immediately for a variety of factors, including
reluctance to report abuse on the part of residents, family members, nursing
home employees, and administrators. In addition, individuals who are unaware
that state survey agencies have designated special telephone numbers as
complaint intake lines may have difficulty identifying these numbers in
telephone directories, which could also result in delays.
Police Not Immediately Notified of Abuse or Routinely Involved in Survey
Agency Investigations
Victims of crimes ordinarily call the police to report instances of physical
and sexual abuse, but when the victim is a nursing home resident, the police
appear to be notified infrequently. Residents and family members are not
required to notify local police of abusive incidents. Several police
officials told us that, like any crime, police should be summoned as soon as
the incident is discovered. However, police told us that when they do learn
of an allegation of abuse involving a nursing home resident, it is sometimes
after another entity, such as the state survey agency, has begun to
investigate, thus hampering law enforcement's evidence collection and
limiting their investigations. Most of the police departments also indicated
that they did not track reports of abuse allegations involving nursing home
residents and thus did not have data on the number of such reports.
When residents and family members do report allegations of abuse, they may
complain directly to the nursing home administrator rather than contact
police. According to one long-term care ombudsman, resident and family
members do not always view the abuse as a criminal matter. Nursing homes are
usually not compelled to notify local law enforcement when they learn of
such reports. There is no federal requirement that they contact police,
although some states-including Pennsylvania-have instituted such a
requirement. According to an Illinois state survey agency official, a
similar requirement will go into effect in that state in March 2002.
Our discussions with officials from 19 local law enforcement agencies
indicate that police are rarely called to investigate allegations of the
abuse of nursing home residents. Besides infrequent contact from residents,
family members, and nursing homes, officials from 15 of the 19 police
departments we visited told us that they had little or no contact with
survey agencies. Officials from several of these departments reported that
they were unaware of the role state survey agencies play in investigating
instances of resident abuse.
Abuse Allegations Not Immediately Reported to State Survey Agencies
Our review of 158 case files-mostly from 1999 and 2000-indicated state
survey agencies were often not promptly notified of abuse allegations.14
While individuals filing complaints are not compelled to report allegations
within a prescribed time frame, nursing homes in the states we visited are
required to notify the state survey agency of abuse allegations the day they
learn of the allegation or the following day. We found that both complaints
from individuals and notifications from nursing homes are frequently
submitted to survey agencies days, and sometimes weeks, after the abuse has
taken place.
As table 1 shows, 20 of the 31 complaint cases we could assess for
promptness of submission contained allegations that were reported to the
state survey agency 2 days or more after the abuse took place. Further,
eight were reported more than 2 weeks after the alleged abuse occurred.
Table 1: Timeliness of Complaints Submitted to State Survey Agencies in 1999
and 2000
Summary of later submissions State
Submitted same day or next day
Submitted two or more
days later 2-7 days 8-14 days 15+ days
aTwo Illinois
cases were first
reported in 1998.
Source: GAO
analysis of 31
state complaint
files.
There were comparable delays in facilities' notifications of alleged abuse
to the state survey agencies. The three states we visited require that
14Eleven of the cases from Illinois were first reported in 1998.
nursing homes notify them of instances of alleged abuse immediately-
interpreted by survey agency officials in all three of the states to mean
the day the facility learns of the abuse or the next day. As table 2 shows,
however, only about half of the 111 nursing home notifications we could
assess for promptness were submitted within the prescribed time frame.
Table 2: Timeliness of Notifications to State Survey Agencies in 1999 and
2000
Summary of later submissions State
Submitted same day or next day
Submitted two or more
days later 2-7 days 8-14 days 15+ days
aNine Illinois
cases were first
reported in 1998.
Source: GAO
analysis of 111
state notifications.
Delays in notifying survey agencies of abuse prevent the agencies from
promptly investigating and ensuring that nursing homes are taking
appropriate steps to protect residents. Residents may remain vulnerable to
abuse until corrective action is taken.
Untimely Reporting Attributable to Multiple Factors
Allegations of abuse of nursing home residents may not be reported promptly
for a variety of reasons. For example, a recent study found that nursing
home staff may be skeptical that abuse occurred.15 Residents may also be
afraid to report abuse because of fear of retribution, according to another
study and two long-term care ombudsmen we met with.16 According to one law
enforcement official, family members are sometimes fearful that the resident
will be asked to leave the home and are troubled by the prospect of finding
a new place for the resident to live. In addition, nursing home staff and
management do not always report abuse promptly,
15Ann W. Burgess, Elizabeth B. Dowdell, and Robert A. Prentky, "Sexual Abuse
of Nursing Home Residents," Journal of Psychosocial Nursing, 38, no. 6 (June
2000).
16Paul D. Hodges, "National Law Enforcement Programs to Prevent, Detect,
Investigate, and Prosecute Elder Abuse and Neglect in Health Care
Facilities," Journal of Elder Abuse and Neglect (1998).
despite requirements to do so. According to law enforcement and state survey
agency officials, staff fear losing their jobs or facing recrimination from
co-workers and nursing home management. Similarly, they also said that
nursing home management is sometimes reluctant to risk adverse publicity or
sanctions from the state.
We saw evidence of delayed reporting by family members, staff, and
management in our file reviews, as illustrated by the following examples:
* A resident reported to a licensed practical nurse that she had been raped
in the nursing home. Although the nurse recorded this information in the
resident's chart, she did not notify nursing home management. She also
allegedly discouraged the resident from telling anyone else. Two months
later the resident was admitted to a hospital for unrelated reasons and told
hospital officials that she had been raped. It was not until hospital
officials notified police of the resident's complaint that an investigation
was conducted. Investigators then discovered that the resident had also
informed her daughter of the incident, but the daughter, apparently not
believing her mother, had dismissed it. The resident later told police that
she did not report the incident to other staff at the nursing home because
she did not want to cause trouble. The case was closed because the resident
could not describe the alleged perpetrator. However, the nurse was counseled
about the need to immediately report such incidents.
* An aide, angry with a resident for soiling his bed, threw a pitcher of
cold water on him and refused to clean him. Another aide witnessed the
incident. Instead of informing management, the witness confided in a third
employee, who reported the incident to the nursing home administrator 5 days
after the abuse took place. The abusive aide was fired, and a finding of
abuse was recorded in her nurse aide registry file.
* One nursing home employee witnessed an aide slap a resident; two other
employees heard the incident. The aide denied the allegation, yet the
resident developed redness, swelling, and bruising around her eye. The
witnesses reported the matter to nursing home management, which investigated
the situation and suspended the aide the next day. The aide was subsequently
fired. However, the state survey agency was not notified of the incident by
the home until 11 days after the abuse took place.
During our work we discovered that nursing home residents and family members
who are prepared to report abuse to the state survey agency could encounter
difficulty in identifying where to report a complaint of abuse, which can
further delay reporting. For example, telephone books for Chicago and
Peoria, Illinois, and Athens and Augusta, Georgia, did not
include complaint telephone numbers. Although telephone books in
Philadelphia and Pittsburgh, Pennsylvania, contained the correct numbers for
the state survey agency's offices, they did not identify the designated
complaint number, making it difficult for an individual unfamiliar with the
agency to recognize its telephone number as an appropriate place to report
suspected abuse.
Individuals who are not already familiar with the state survey agency's role
and its complaint telephone line may encounter a confusing array of numbers
both public and private in their local telephone directory. In the three
states we visited we reviewed the government and consumer pages in nine
telephone books and identified a wide variety of organizations, which, by
their names, appeared capable of addressing complaints. However, many did
not have the authority to do so. In this review, we identified 42 entities
that appeared to be organizations where abuse could be reported and were not
affiliated with the state survey agencies. Only six of these entities
represented organizations-such as long-term care ombudsmen-that are capable
of pursuing abuse allegations. The remaining 36 entities either could not be
reached or could not accept complaints, despite having listings such as the
"Senior Helpline." Sometimes these entities attempted to refer us to a more
appropriate organization, but with mixed success. For example, our calls in
Georgia resulted in four correct referrals to the state survey agency's
designated complaint telephone line but also led to five incorrect
referrals. Five other Georgia entities offered us no referrals.
To facilitate reporting, nursing homes are required to post the telephone
numbers of complaint lines in a prominent location within the facility.
State survey agencies are expected to verify that these numbers are properly
displayed when they conduct their annual inspections and have the option of
citing homes with deficiencies if they fail to do so. However, deficiency
data compiled by CMS do not specifically identify the number of homes cited
for failure to display these numbers, and so it is not readily apparent how
often nursing homes do not comply with this specific requirement.
Despite its requirement that nursing homes post the complaint telephone
numbers, CMS recognized that a greater awareness of how to report abuse was
warranted and so, in 1998, it initiated an educational campaign regarding
abuse prevention and detection in nursing homes. Because publicizing the
appropriate telephone numbers for reporting abuse is critical, a key
component of the campaign was the development of a poster to be used by
nursing homes nationwide. According to a CMS
official, the poster will identify several options for reporting abuse,
including notifying nursing home management, local law enforcement,
complaint telephone numbers, and CMS.17 In addition to displaying these
numbers, the posters will feature removable cards-which individuals may
retain-listing the organizations and telephone numbers contained on the
poster. A pilot test of the poster was conducted in 1999. Based on feedback
received from the pilot test, the poster was revised, but it has not been
approved for distribution.
Relatively few prosecutions result from allegations of physical and sexual
abuse of nursing home residents. We identified two impediments to the
successful prosecution of employees who abuse nursing home residents. First,
allegations of abuse were not always referred to local law enforcement or
MFCUs. When referrals were made it was often days or weeks after the
incident occurred, compromising the integrity of what limited evidence might
have still been available. Second, a lack of witnesses to instances of abuse
made prosecutions difficult and convictions unlikely.
Abusive Nursing Home Staff Difficult to Prosecute
States' Policies Regarding Referrals to Law Enforcement Varied and Limited
Prosecutions
Each of the states we visited had a different policy for referring instances
of suspected abuse to law enforcement officials. While Illinois and Georgia
both relied on their MFCUs to pursue criminal investigations concerning
resident abuse, they followed different policies.18 Our review of case files
in Illinois showed that the state survey agency consistently referred all
reports of physical and sexual abuse-regardless of whether they were
complaints or incident reports-to the MFCU, which in turn determined whether
to open an investigation. As a result, the Illinois MFCU appeared to play a
substantial role in abuse investigations. On the other hand, the Georgia
survey agency evaluated each allegation and selectively referred cases to
its MFCU according to a mutually agreed upon procedure. In accordance with
this procedure, the survey agency screened complaints and incident reports
before making referrals to its MFCU based on an
17Although the same poster would be used nationwide, nursing homes would
receive posters listing any telephone numbers unique to their state.
18The survey agency in Pennsylvania referred three abuse cases to its MFCU
in 1999 because, by agreement, this MFCU typically investigates neglect
matters, while local law enforcement agencies investigate abuse.
Consequently, Pennsylvania's approach does not lend itself to a comparison
with Illinois and Georgia.
assessment of the severity of the allegations or circumstances. Survey
agency officials also told us that, in making these assessments, they
considered the likelihood that reporting the abuse to the MFCU would result
in a criminal conviction.
The differences in Illinois's and Georgia's referral policies yielded
dramatically different results. While the Illinois survey agency referred
approximately 300 allegations of abuse to its MFCU in 1999,19 Georgia only
referred 27 allegations in the same period. Although Illinois had more than
twice as many nursing home residents as Georgia-81,500 vs. 33,800-the
discrepancy in population size does not account for the significant
difference in the number of referrals. Our review of the 50 Illinois cases
revealed that the Illinois survey agency referred cases to its MFCU earlier
than the Georgia survey agency. The Illinois cases were referred to the
MFCU, on average, 3 days after receiving a report of abuse, while Georgia
referred cases, on average, 15 days after learning about an allegation.
Illinois's policy of routinely referring all allegations to its MFCU enables
referrals to be made more quickly than Georgia's system of evaluating and
screening all allegations prior to making selective referrals.
The state survey agencies in Illinois and Georgia referred 64 of the cases
we reviewed to the MFCUs for investigation. As indicated in table 3,
Georgia, which referred fewer cases to its MFCU, had fewer convictions. By
referring more cases to its MFCU, the Illinois survey agency presented law
enforcement with the opportunity to assess whether an abusive act had been
committed and whether it should be criminally pursued. In addition, by
referring its cases to its MFCU sooner, on average, than Georgia, Illinois
also enhanced law enforcement's ability to conduct more timely and effective
investigations. The Georgia survey agency's screening process provided law
enforcement fewer and less timely opportunities to investigate allegedly
abusive caregivers.
19The MFCU did not open investigations for each of the 300 referrals it
received from the state survey agency. In some instances, the MFCU obtained
insufficient information to pursue an investigation. In other instances, it
conducted preliminary work and concluded that continuing the investigation
was not warranted.
Table 3: Cases Referred by Survey Agencies to Their Respective MFCUs in 1999
State Number reviewed Number of MFCU referrals Number of convictions
Illinois 50 50
Georgia 52 14
Source: GAO analysis of 102 case files.
In discussing Georgia's referral policy with survey agency and MFCU
officials, we learned that the agency substantially changed its MFCU
referral criteria in 2000, leading to an increased number of referrals-
111-that year. This change followed a new understanding between survey
agency and MFCU officials based on the MFCU's expressed willingness to
investigate instances of abuse. Previously, the survey agency typically did
not refer instances that it considered less serious-such as incidents
involving nursing home employees slapping residents with no reported visible
injuries-to the MFCU. According to survey agency officials, they did not
refer such allegations because they believed that these cases did not meet
the referral criteria. In their view, it was unlikely that the MFCU would
consider such acts serious enough offenses to warrant an investigation and
prosecution.
Lack of Witnesses Reduce Likelihood of Successful Prosecutions
The lack of compelling evidence often precludes prosecution of those who
have abused nursing home residents. MFCU and local law enforcement officials
indicated that nursing home residents are often unwilling or unable to
provide testimony. The state survey agency and law enforcement officials we
spoke to agreed with this determination. Our file reviews confirmed that
residents were reluctant or unable to provide evidence against an accused
abuser in 32 of the 158 cases we reviewed, thus making it difficult to
pursue a criminal investigation. Our work also indicated that resident
testimony could be limited by mental impairments or an inability to
communicate. We noted several instances in which residents sustained
unexplained black eyes, lacerations, and fractures. However, despite the
existence of serious injuries, investigators could neither rule out
accidental injuries nor identify a perpetrator.
Prosecutions of individuals accused of abusing nursing home residents are
often weakened by the time lapse between the incident and the trial. Law
enforcement officials and prosecutors told us that the amount of time that
elapses between an incident and a trial could ruin an otherwise successful
case because witnesses do not always remember important details about the
incident. Although it is not uncommon for the memories of witnesses
in criminal cases to fade, impaired recall is even more prevalent among
nursing home residents. Our review showed that nursing home residents may
become incapable of testifying months after they were abused. For example,
in one case, a victim's roommate witnessed the abuse and positively
identified the abuser during the investigation. However, by the time of the
trial-nearly 5 months later-she could no longer identify the suspect in the
courtroom, prompting the judge to dismiss the charges. Moreover, given the
age and medical condition of many nursing home residents, many might not
survive long enough to participate in a trial. One recent study of 20
sexually abused nursing home residents revealed that 11 died within 1 year
of the abuse.20 Law enforcement officials told us that, without testimony
from either a victim or a witness, conviction is unlikely.
Measures to Safeguard Residents from Abusive Employees Are Ineffective
The safeguards available to states do not sufficiently protect residents
from abusive employees. CMS's requirements preclude facilities from
employing an individual convicted of abusing nursing home residents but
permit the hiring of those convicted of other abusive acts, such as child
abuse. Although some states have established more stringent requirements,
criminal background checks typically do not identify individuals who have
committed a crime in another state. Nursing homes can be cited for
deficiencies if they fail to adequately protect residents from abuse, but
these deficiencies rarely result in the imposition of sanctions, such as
civil monetary penalties, by state survey agencies. State survey agencies,
which also oversee the operation of state nurse aide registries, do not
adequately ensure that residents will be protected from aides who previously
abused residents. Finally, states are unable to take professional
disciplinary actions against other employees, such as security guards or
housekeeping staff, who may have abused residents but who are neither
licensed nor certified to care for residents.
CMS Employment Requirements and Background Checks Do Not Ensure Resident
Protection
While CMS requires nursing homes to establish policies that prevent the
hiring of individuals who have been convicted of abusing nursing home
residents, this requirement does not include offenses committed against
individuals outside the nursing home setting, nor does it specify that
states conduct background checks on all prospective employees. CMS's
requirement does not preclude individuals with similar convictions-such
20Ann W. Burgess, Elizabeth B. Dowdell, and Robert A. Prentky, "Sexual Abuse
of Nursing Home Residents," Journal of Psychosocial Nursing, 38, no. 6 (June
2000).
as assault, battery, and child abuse-from obtaining nursing home employment.
The three states we visited all apply a broader list of offenses that
prohibit employment in a nursing home. Each state's prohibition of employees
includes those convicted of offenses such as kidnapping, murder, assault,
battery, or forgery and is not limited to offenses against nursing home
residents. However, the three states vary in their application of these
prohibitions. For example, Illinois's prohibition does not apply to
employees who are not directly involved in providing care to residents and
allows nurse aides who have been convicted of such offenses to apply for a
waiver. Waivers may be granted if there are mitigating circumstances and
allow these aides to work in nursing homes. Pennsylvania's prohibition
applies to all nursing home employees, not just those involved in patient
care. Georgia's prohibition, enacted in 2001, also applies to all nursing
home employees, but only if they were convicted of abuse-related crimes
within the preceding 10 years.
Criminal background checks do not adequately protect residents, in part,
because, as in Illinois, they may not apply to all nursing home employees.21
More importantly, the background checks that are performed by state and
local law enforcement officials in the three states we visited are typically
only statewide. Consequently, individuals who have committed disqualifying
crimes in one state may be able to obtain employment at a nursing home in
another state.
Nationwide background checks on prospective nursing home employees can be
performed by the Federal Bureau of Investigation (FBI) if nursing homes
request them. These checks could identify offenses committed elsewhere, but
not all states take advantage of this option. According to an FBI official,
21 states have requirements that subject some health care employees to these
checks, but state requirements vary and do not always apply to prospective
nursing home employees. This official told us that most of the requests the
FBI receives on health care personnel are from these 21 states. He told us
that, of the remaining states, only nursing homes in North Carolina and Ohio
request such background checks
21Illinois requires the background check on employees providing direct care,
except for licensed personnel.
regularly.22 Of the three states we visited, only Pennsylvania submits
background check requests to the FBI. However, these are limited to those
individuals who have lived outside the state during the 2 years prior to
applying for nursing home employment.
Two of the states we visited allow employees to report for duty before
background checks are completed. Pennsylvania23 and Illinois permit new
employees to report to work before criminal background checks are completed,
for up to 30 days and 3 months, respectively. However, Georgia survey agency
officials told us that nursing homes could be cited with a deficiency if new
employees assume their duties before the nursing home receives the results
of the background checks. Georgia requires that these checks be completed
within 3 days of the request.
CMS does not require that the results of criminal background checks be
included in nurse aide registries. Of the three states we visited, only
Illinois requires that the results be reported to the state survey agency by
the nursing home.24 If the check reveals a disqualifying criminal history,
it will be included in the Illinois registry. Therefore Illinois nursing
homes are able to identify some aides with disqualifying convictions before
offers of employment are made and criminal background checks are initiated.
Officials in Georgia and Pennsylvania explained that they verify the
completion of background checks for new employees, including nurse aides, as
they conduct their periodic nursing home surveys. As a result, they told us
that they do not believe that the results of these checks need to be added
to their registries.
22Under P.L. 105-277, Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, 112 Stat. 2681-73, nursing homes may obtain
national, fingerprint-based background checks from the FBI for applicants
for employment in positions involving direct patient care.
23Under Pennsylvania law, applicants who have lived in the state less than
two years may be employed on a provisional basis for up to 90 days while
their FBI background checks are being completed.
24A 1998 survey conducted by the Department of Health and Human Services
Office of Inspector General reported that Illinois was the only state with
this requirement (Safeguarding Long-Term Care Residents, A-12-97-00003
(Washington, D.C.: Sept. 14, 1998).
Nursing Homes Rarely Sanctioned for Improperly Responding to Abuse
For the states that we reviewed, sanctions were rarely imposed against
nursing homes for deficiencies associated with their handling of instances
of abuse. Deficiencies considered the most severe-those resulting in actual
harm or immediate jeopardy to resident health or safety-could result in an
immediate sanction, such as a civil monetary penalty. Deficiencies not
resulting in actual harm or immediate jeopardy usually resulted in nursing
homes being required to submit a plan of corrective action. Nursing homes
that submit corrective action plans may also face other sanctions.
The Georgia, Illinois, and Pennsylvania survey agencies eventually cited 26
nursing homes-from the 158 cases we reviewed-for abuse-related deficiencies
such as failing to report allegations of abuse in a timely manner or failing
to properly investigate them, as well as inadequately screening employees
for criminal backgrounds, as indicated in table 4.
Table 4: Number of Homes Cited for Abuse-Related Deficiencies
Number assessed civil monetary penalties
State Number cited
Georgia 2
Illinois 7
Pennsylvania 17
Total 26
Source: GAO analysis of 158 case files.
The state survey agencies rarely recommended to CMS that civil monetary
penalties be imposed against nursing homes for abuse-related deficiencies,
primarily because most of the deficiencies cited for these 26 nursing homes
were not categorized as placing residents' health or safety in immediate
jeopardy or resulting in actual harm to residents. Only 1 of these 26
facilities-in Illinois-was assessed a civil monetary penalty. However, the
penalty was reduced on appeal. State survey agencies did not recommend other
sanctions on the 25 remaining nursing homes.
Nurse Aide Registries Do We found that allegedly abusive nurse aides
received different treatment Not Ensure Resident depending on the state in
which they worked. In addition, when states Protection determined that aides
were abusive, there were frequent and long delays
in the inclusion of this information in their registry files. Residents
could have been exposed to abusive individuals while their cases were
pending.
Inconsistent Treatment of Nurse Aides Poses Risks to Nursing Home Residents
Finally, we found that one state's Web-based nurse aide registry lacked
complete information on aides who had been found to be abusive.
CMS defines abuse as the willful infliction of injury, unreasonable
confinement, intimidation, or punishment with resulting physical harm, pain,
or mental anguish. CMS officials told us that states may use different
definitions so long as they are at least as broad as the CMS definition.25
While the three states we visited have definitions that appear at least as
broad as the CMS definition, variations in the way these states interpret or
apply their definitions affect whether aides' actions are reflected in state
registries.
For example, the Georgia definition is very similar to CMS's and defines
abuse to include, among other things, the "willful infliction of physical
pain, physical injury, [or] mental anguish." Officials there told us,
however, that in order to add a finding of abuse to an aide's registry file,
they must be convinced that the aides' actions were intentional. They are
less likely to determine that an aide has been abusive if the aide's
behavior appeared to be spontaneous or the result of a "reflex" response.
Officials said they would view an instance in which an aide struck a
combative resident in retaliation after being slapped by the resident as an
unfortunate reflex response rather than an act of abuse.
Similarly, Pennsylvania defines abuse to include, among other things,
"infliction of injury . . . or intimidation or punishment with resulting
physical harm, pain or mental anguish." While this definition appears to be
at least as broad as the CMS definition, Pennsylvania officials told us that
they would be unlikely to annotate an aide's registry file to reflect a
finding of abuse unless the aide caused serious injury or obvious pain. Our
review of Pennsylvania files indicated that most of the aides that were
found to have been abusive had, in fact, clearly injured residents or caused
them obvious pain. However, these files also indicated that in several
instances in which residents were bumped or slapped and indicated that they
were in pain as the result of aides' actions, the survey agency decided not
to take action because the residents had no physical injuries. As in
Georgia, agency officials indicated that they needed to establish that the
action was intentional.
25CMS officials told us that a state must follow the federal definition of
abuse when it is performing a federal survey.
In contrast, Illinois defines abuse as "any physical . . . or mental injury
inflicted on a resident other than by accidental means." Incidents like
those not reported to registries in Georgia or Pennsylvania-reflex actions
and those devoid of serious injury or obvious pain-are added to Illinois's
registry. We saw 17 such cases in Illinois in which state survey officials
did find the aides to have been abusive. We also reviewed, in both Illinois
and Georgia, what appeared to be comparable complaints in which a nursing
home employee witnessed another staff member strike a combative resident.
Both survey agencies made preliminary determinations that the employees had,
in fact, abused residents. The Illinois survey agency not only included its
determination in the aides' registry files, it also referred the matter to
its MFCU, resulting in a criminal conviction.26 The Georgia survey agency
reversed its initial determination that the aide was abusive when the aide
requested that the matter be reconsidered, even though the aide did not
provide new evidence to disprove the allegation. Notes in the case file
indicated that Georgia reversed its decision because the aide's action was
reflexive. Consequently, Georgia did not annotate the aide's registry
information to reflect a finding of abuse and did not refer this incident to
its MFCU. We identified four additional instances among the 52 Georgia cases
we reviewed involving nurse aides who hit or otherwise injured combative
residents after these residents had tried, sometimes successfully, to harm
them first. None of these cases resulted in determinations that aides were
abusive. The files indicated that officials had determined that the aides
did not intend to hurt the resident and were not abusive because the
residents were combative. Consequently, no further actions were taken.
CMS officials agreed with state survey agency officials that intent is a key
factor in assessing whether an aide abused a resident. However, they would
not necessarily find a reflex response to be unintentional. These officials
indicated that an aide who slaps a resident back could have developed intent
in an instant and thus should be considered abusive.
Of the 158 cases of alleged physical and sexual abuse that we reviewed, 105
involved nurse aides. States notified 41 of these aides of their intent to
annotate their registry files to reflect findings of abuse, which would
prevent them from obtaining future employment in a nursing home. As
26As a result, this aide was sentenced to 2 years probation, directed to
complete 100 hours of community service, and prohibited from employment that
would involve contact with the elderly or disabled.
table 5 shows, 27 of these 41 aides eventually had their registry files
annotated. Consistent with Illinois's broad definition of abuse and the fact
that officials there have not narrowed its scope through its application,
most of these aides were from that state.
Table 5: Cases of Alleged Abuse Involving Nurse Aides State
Cases involving nurse aides
Aides notified of intent to annotate registry records
Aides with registry records annotated as of January 2002
Delays in
Annotating Record
Leave Residents
Vulnerable
Source: GAO
analysis of 158 reviewed case files and related nurse aide registry data.
We found examples of delays between the time the state survey agencies
learned that a nurse aide had allegedly abused a resident to the date of the
agencies' final determinations. Our review of the 71 case files from
Illinois and Georgia involving allegedly abusive aides, and our review of
1999 nurse aide registry records in Pennsylvania27 indicated that while some
determinations were made in less than 2 months, a substantial number-
12-took 10 months or more. Three of these 12 determinations took at least 2
years. Such delays can put residents of other nursing homes at risk. By the
time state survey agencies have determined that some aides are abusive,
these aides may have already found employment in other homes.
The process of determining whether an aide actually abused a resident can be
time-consuming. While CMS requires survey agencies to begin their
investigation of an allegedly abusive aide within two days of learning of an
allegation, it does not impose a deadline for completing these
investigations. State survey agency investigations can be prolonged,
particularly if law enforcement is involved.
Nurse aides are entitled to due process, but nursing home residents may
remain vulnerable to abuse until final determinations are made. Once
27Thirty-four of the Pennsylvania case files we reviewed involved allegedly
abusive nurse aides. As of January 2002, none of these aides had findings of
abuse reflected in their registry records. In order to assess the time
frames of Pennsylvania's abuse determinations, we reviewed files of all
nurse aides who had been found abusive in 1999.
Inaccuracies in Nurse Aide Registry Web Sites May Compromise Resident Safety
officials make an initial determination that an aide abused a resident, the
aide must be informed in writing. The notification must also inform the aide
that the agency intends to update the registry to reflect this
determination, which would prevent the aide from obtaining future employment
in a nursing home in that state. Because of the severity of these
consequences, aides are entitled to hearings. Hearings must be requested in
writing within 30 days of the notification from the state survey agency
regarding its determination and its intent to include a finding of abuse in
the registry. Hearings may not be held for several months, and hearing
officers may not render their decisions immediately. No entry may be made in
an aide's registry record until a final determination is made that the aide
was abusive. Our analysis of nurse aide registry records from 1999 indicated
that, for all aides with abuse findings recorded in their registry files in
all three states, hearings added, on average, 5 to 7 months to the
determination process.
We identified problems with the accuracy of information contained in one
state's nurse aide registry Web site that could have resulted in the
provision of inaccurate information to nursing homes screening potential
employees. Our test of the accuracy of the sites for the three states we
visited showed that, in some instances, findings of abuse had been annotated
to an aide's registry record but had not been included in registry
information posted on the Web site. For example, four Georgia aides with
final determinations of abuse did not have such findings reflected in their
files at the state's registry Web site. Agency officials confirmed our
results and consequently closed the agency site for more than a week.
However, they told us that the problem was limited to the site and did not
affect their ability to provide correct information by telephone or fax.
They also reported that the agency's ability to provide a complete list of
abusive aides in its quarterly bulletins to nursing homes was not
compromised.
Just as background checks would typically reveal only offenses committed in
the state in which an applicant seeks employment, nurse aide registries
reflect an aide's history in a particular state. In 1998, the HHS Office of
Inspector General recommended that HCFA assist in developing a national
abuse registry and expand state registries to include all nursing home
employees who have abused residents or misappropriated their property in
facilities that receive federal reimbursement.28 A CMS contractor is
28Department of Health and Human Services Office of Inspector General,
Safeguarding Long-Term Care Residents, A-12-97-00003 (Washington, D.C.:
Sept. 14, 1998).
currently conducting a feasibility study regarding the development of such a
registry. The study includes a cost-benefit analysis to assess the
implications of a centralized nurse aide registry and, to a lesser extent,
the implications of tracking all nursing home employees. The implications of
requiring other health care providers-such as home health agencies-to query
nurse aide registries is also under study. The contractor is scheduled to
report its findings as soon as March 2002.
Other Nursing Home Employees May Not Be Disciplined
Although nurse aides compose the largest proportion of nursing home
employees, other employees, such as laundry aides, security guards, and
maintenance workers have also been alleged to have abused residents. While
survey agencies can prevent abusive aides from working in nursing homes and
can refer licensed personnel, such as nurses and therapists, to state
licensing boards for disciplinary action, they have no similar recourse
against other abusive employees, who may continue to work in nursing homes.
Survey agencies can, however, cite facilities for deficiencies if
appropriate actions-such as reporting and investigating the allegations-are
not taken.
Of the 158 cases of alleged physical and sexual abuse that we reviewed, 10
suspected perpetrators were employees who were not subject to licensing or
certification requirements. None of the facilities in these cases were cited
for deficiencies. Although there is no administrative process to enable the
state to take actions against such employees, these employees could be
criminally prosecuted. Of these 10 cases, 4 involved allegations that proved
unfounded or for which evidence was inconsistent. One of the 10 employees
ultimately pled guilty in court. Three others were investigated by law
enforcement but were not prosecuted.29 The remaining 2 employees were
terminated by their nursing homes but were not the subject of criminal
investigations.30
Conclusions Nursing homes are entrusted with the well-being and safety of
their residents yet considerable attention has recently been focused on the
inadequacies of care provided to many nursing home residents. Along with
29Two of these employees were terminated. The third was a security guard,
employed by a private company, who was removed from duty at the nursing
home.
30These cases involved alleged physical abuse, but the residents did not
sustain apparent injuries.
receiving quality care, residents are entitled to be protected from those
who would harm them. Residents who are abused need to be assured that their
allegations will be immediately referred to the proper authorities and
investigated expeditiously. In addition, law enforcement authorities need to
ensure that abusive individuals are prosecuted when appropriate, and survey
agencies should recommend to CMS that available administrative sanctions be
imposed against known abusers.
Our work shows that nursing home residents need both stronger and more
immediate protections. Law enforcement agencies, such as state MFCUs or
local police departments, are not involved as often or as soon as they
should be, especially when there are indications of potential criminal
activity. Additionally, determining where to report complaints of alleged
abuse can be confusing. Prompt reporting is especially crucial given the
often-limited evidence available.
CMS is taking important steps that may better protect residents. For
example, its feasibility study on the development of a national abuse
registry could lead to enhanced resident safety. However, other efforts have
fallen short. For example, an important tool could be the agency's
educational campaign using a new poster in nursing homes nationwide to
better inform residents and family members about how to report abuse.
However, the poster has been under development for more than 3 years.
More should be done to protect nursing home residents. CMS's requirement
that nursing homes not employ individuals convicted of abusing residents
does not sufficiently prevent the hiring of potentially abusive individuals.
Those who have committed similar offenses, such as child abuse, are eligible
to work in nursing homes unless states impose a more stringent requirement.
While CMS does not require criminal background checks, some states have
instituted them. However, they may not be required for all prospective
employees and may not identify offenses committed in other states. In
addition, CMS's definition of abuse is not sufficiently detailed to ensure
that all states report every incident that CMS would consider abusive.
Affording due process to nurse aides who have allegedly abused residents is
important and necessary. However, determinations that nurse aides have been
abusive can be time-consuming, leaving residents at risk if these aides
continue to work in nursing homes. Finally, nurse aide registries may have
incorrect information, allowing nursing homes to hire aides previously found
abusive.
Recommendations for To better protect nursing home residents, we recommend
that the CMS administrator:
Executive Action
* Ensure that state survey agencies immediately notify local law enforcement
agencies or MFCUs when nursing homes report allegations of resident physical
or sexual abuse or when the survey agency has confirmed complaints of
alleged abuse.
* Accelerate the agency's education campaign on reporting nursing home abuse
by (1) distributing its new poster with clearly displayed complaint
telephone numbers and (2) requiring state survey agencies to ensure that
these numbers are prominently listed in local telephone directories.
* Systematically assess state policies and practices for complying with the
federal requirement to prohibit employment of individuals convicted of
abusing nursing home residents and, if necessary, develop more specific
guidance to ensure compliance.
* Clarify the definition of abuse and otherwise ensure that states apply
that definition consistently and appropriately.
* Shorten the state survey agencies' time frames for determining whether to
Agency Comments
and Our Evaluation
include findings of abuse in nurse aide registry files.
We received comments on a draft of this report from CMS, the Department of
Justice (DOJ), the three state survey agencies we visited (the Illinois
Department of Public Health, the Georgia Department of Human Resources, and
the Pennsylvania Department of Health), and the MFCUs in Illinois and
Georgia.31 We also received comments from two organizations representing the
nursing home industry-the American Health Care Association (AHCA) and the
American Association of Homes and Services for the Aging (AAHSA).
In its comments, CMS generally agreed with our recommendations and said that
it is committed to protecting nursing home residents from harm and explained
that it is currently investigating new ways to combat resident abuse and
neglect. We have reprinted CMS's letter in appendix II.
31Because of the limited role of the Pennsylvania MFCU in abuse cases, we
did not provide it a copy of our draft, although we briefed the MFCU
officials on its contents.
CMS also provided technical comments, which we have incorporated as
appropriate.
CMS agreed with our first recommendation and said it would instruct state
survey agencies to immediately notify local law enforcement agencies or
MFCUs of confirmed abuse allegations. CMS also said it would thoroughly
review this recommendation when it completes its analysis of its Complaint
Improvement Project. We believe that immediately notifying law enforcement
of suspected abuse will enhance the safety of nursing home residents, and we
urge CMS's prompt action.
In responding to our second recommendation-that CMS accelerate its education
campaign-the agency said that it is working with HHS to release its new
poster as soon as possible, but did not indicate when it might be
distributed to nursing homes. In addition, CMS agreed to request states to
prominently list telephone numbers for reporting abuse in local telephone
directories.
CMS agreed with our third recommendation and said it will review state
policies and practices and reissue guidance regarding employment
prohibitions pertaining to individuals convicted of abusing nursing home
residents. We believe that an assessment of the current requirements, that
includes an evaluation of the states' implementation of these requirements,
could have a lasting impact on resident safety.
In addressing our fourth recommendation-to clarify the definition of abuse
and ensure that states consistently and appropriately apply this
definition-CMS explained that states can use their own established
definitions of abuse. According to CMS, the state's definitions may be used
when citing homes for deficiencies under their state licensure program but,
when performing a federal survey, CMS noted that the federal definition must
be used. CMS added that it would clarify this distinction with the states.
However, we believe that it is also of great importance to clarify the
definition of abuse that states should apply when considering whether nurse
aides have abused residents and consequently may have this action reflected
in their nurse aide registry files.
CMS agreed to consider our fifth recommendation-to shorten the time frames
for determining whether to include findings of abuse in the nurse aide
registry. CMS acknowledged that a considerable amount of time may elapse
before reports of abuse are finalized and reported to the nurse aide
registry. CMS added this is largely attributable to steps associated with
due process. CMS pointed out that, with the exception of the time taken by
the states to substantiate abuse allegations, all of these time frames are
specified by regulation. However, the regulations do not specify a time
frame for making a final decision once the hearing has been completed and
the hearing record has been closed. CMS said it would take our
recommendation into account when considering changes to these regulations.
We believe that reducing this time period will provide residents with
greater certainty that they will not be exposed to abusive aides.
We received oral comments from the Coordinator of DOJ's Nursing Home and
Elder Justice Initiative. She agreed with the findings in our report. She
also added that resident abuse may be underestimated, as studies suggest a
significant number of abuse cases are never reported. She said that, in
order to respond appropriately to victims of abuse, local law enforcement
and other "first responders" such as firefighters and paramedics, would
benefit from special training. In her view, this training should include
guidance regarding how to distinguish signs of physical abuse from other
types of injuries, advice on interviewing elderly and confused residents,
and investigative techniques and evidence preservation strategies unique to
the nursing home setting. Our work did not include an evaluation of the
training programs offered to law enforcement officials or "first
responders." In addition, she pointed out that DOJ could become actively
involved in investigating abuse allegations in certain situations, such as
those involving facilities where a pattern of abuse has been detected and
instances where nursing home managers or employees have made false
statements to state surveyors regarding resident care. In addition to these
comments, we received technical comments from the FBI, which we incorporated
as appropriate.
We received comments from all three of the state survey agencies we visited
as well as the Illinois MFCU. These agencies described initiatives they have
undertaken to increase awareness of resident abuse and improve reporting and
offered technical comments, which we incorporated as appropriate. Although
we provided our draft to the Georgia MFCU, it did not offer any comments.
Finally, we received comments from representatives of AHCA and AAHSA. Both
organizations generally agreed with our recommendations. AHCA
representatives told us that they suspect that abuse of nursing home
residents is underreported. They said that they support providing more
training to both caregivers and law enforcement officials. They noted that
such training could discourage abusive behavior by nursing home staff and
improve law enforcement's responsiveness to instances of resident abuse.
Our work did not include an evaluation of such training programs.
Representatives of both AHCA and AAHSA indicated that they strongly support
the establishment of a national nurse aide registry and a national criminal
background check for nursing home employees. In addition, the AAHSA
representatives said that they strongly agreed with our recommendation to
clarify the definition of abuse. They noted that the definition of abuse has
long been the subject of debate and its clarification by CMS is in the
interest of residents, as well as nursing home management and staff. In
addition to these comments, both AHCA and AAHSA offered technical comments,
which we have incorporated as appropriate.
As agreed with your offices, unless you announce its contents earlier, we
plan no further distribution of this report until 30 days after its issuance
date. At that time, we will send copies to the CMS administrator,
interested congressional committees, and other interested parties. We will
then make copies available to others upon request. If you or your staff
have any questions about this report, please call me at (312) 220-7600. An
additional GAO contact and other staff who made major contributions to
this report are listed in appendix III.
Leslie G. Aronovitz
Director, Health Care-Program
Administration and Integrity Issues
Appendix I: Scope and Methodology
To determine the federal requirements for responding to, and investigating
allegations of, abuse of nursing home residents, we reviewed federal laws
and regulations. We interviewed officials from the Centers for Medicare and
Medicaid Services (CMS ) regarding these requirements and also discussed
their oversight of the state survey agencies responsible for surveying
nursing homes and certifying their compliance with federal laws and
regulations. We conducted our work in three states with relatively large
nursing home populations-Illinois, Georgia, and Pennsylvania-and discussed
these requirements with survey and law enforcement officials in these
states. In addition, we met with officials from the three states'
departments on aging and local area agencies on aging because they may also
receive abuse referrals and conduct investigations. We reviewed and
discussed relevant state policies and procedures with these officials.
Finally, to become familiar with the general progression of abuse
investigations, we attended conferences and consulted with experts in the
field of elder abuse.
For each of the three states we visited, we reviewed cases involving
allegations of physical and sexual abuse.1 Most of these cases were opened
by Medicaid Fraud Control Units (MFCUs) or reported to state survey
officials in 1999 or 2000. We focused on the survey agencies' and MFCUs'
files. We did not review any of the allegations investigated by the state
departments on aging or local area agencies on aging because of agency
officials' concerns with confidentiality. In total, we reviewed 158 cases to
determine the circumstances and nature of the cases, the extent to which the
allegations were investigated and prosecuted, and the timeliness of
referrals and investigations. However, our findings cannot be generalized or
projected. To assess the timeliness of reporting abuse allegations, we used
the information from our case review and compared these results to federal
and state guidelines. For cases that the state survey agency referred to the
MFCU, we calculated the number of days between agency receipt and referral
to the MFCU. We also determined the number of convictions resulting from
these referrals.
At the Illinois Department of Public Health (IDPH)-the state survey
agency-we identified and reviewed 50 cases involving physical or sexual
abuse that were reported by individuals as complaints or by nursing
1Our objectives were limited to allegations of physical and sexual abuse.
Thus, we omitted all cases with allegations solely of neglect. In addition,
we omitted those that were still under investigation at the time of our
review.
Appendix I: Scope and Methodology
homes in incident reports. All of these allegations were referred by IDPH to
its MFCU. These included all of the allegations of physical or sexual abuse
for which the MFCU had opened investigations in 1999 and closed at the time
of our review.2 We reviewed the relevant files at both agencies. We also
examined 1 month of referrals that the MFCU reviewed but ultimately did not
investigate. These referrals typically involved bruises of unknown origin,
old injuries, a lack of witnesses, or instances in which the intent to hurt
a resident was questionable or unfounded.
In Georgia, we reviewed 52 abuse allegations. Of these, 14 were either
complaints or incident reports that the state Department of Human Resources
(DHR)-in which Georgia's state survey agency is housed-had referred to the
MFCU in 1999. These 14 cases represent all of the allegations of physical or
sexual abuse that DHR referred to the MFCU in 1999 and for which the MFCU
opened and subsequently closed an investigation. We reviewed these 14 cases
at both agencies. Because DHR does not refer all physical and sexual abuse
cases to the MFCU, we judgmentally selected and reviewed 38 additional abuse
cases that DHR had received but had not referred to the MFCU. We chose these
additional cases from the survey agency's 1999 log of complaints, which
included 60 physical and 14 sexual abuse cases, as well as from its 1999 log
of incident reports, which included 361 physical and 47 sexual abuse cases.
We selected cases based on the proportion of the allegations that involved
physical and sexual abuse, as well as complaints and incident reports.
Because local law enforcement in Pennsylvania is assigned primary
responsibility for investigating the physical or sexual abuse of nursing
home residents, our case file selection for this state differed from that of
Illinois and Georgia. As the MFCU is typically not involved in these cases,
the files we reviewed included 56 cases reported to Pennsylvania's state
survey agency-the Department of Health (DOH)-in 1999 and 2000. These cases
included a mix of complaints and incident reports as well instances of both
physical and sexual abuse.
To identify agencies that might accept reports of abuse, we obtained several
telephone books from each state, including those for large and small
metropolitan areas. We reviewed government and consumer pages to identify
complaint telephone numbers for state survey agencies, other social service
and law enforcement agencies (excluding local police
2Eleven of these cases were reported to IDPH in 1998.
Appendix I: Scope and Methodology
departments), and other organizations, such as long-term care ombudsmen,
that appeared to be potential places for reporting abuse of nursing home
residents. We called these numbers to verify that the organization would
accept such a complaint. We also made follow-up calls when we were referred
elsewhere.
To determine the extent of law enforcement's involvement in investigating
abuse allegations, we interviewed MFCU officials in Illinois, Georgia, and
Pennsylvania. We also spoke with representatives from 19 police departments
from these states-including both urban and rural areas- and four
prosecutors' offices. Some of these departments and prosecutors were chosen
because of their involvement in some of the cases we reviewed.
To determine the extent to which nursing homes were sanctioned for
violations related to abuse, we identified from the files we reviewed the
nursing homes that had been cited for deficiencies related to the abuse
allegations. We then searched state Web sites to obtain surveys pertaining
to these homes from the time of the abuse allegation to the present and
reviewed the surveys to determine what, if any, sanctions had been
recommended.
To evaluate whether sufficient safeguards exist to protect residents from
abusive individuals, we reviewed federal and state laws regarding criminal
background check requirements for nursing home employees and state nurse
aide registries. We also interviewed state survey agency officials and
obtained relevant documentation.
We tested the accuracy of online nurse aide registry Web sites in each state
we visited to verify that findings of abuse had actually been posted to the
site. Survey officials in the three states provided us with lists of nurse
aides who had been found to be abusive through their administrative
processes. Using those lists, we tested the registries to determine whether
all names and information provided to us were accurately reflected by each
state's Web site. In addition, we obtained copies of state agencies' 1999
and 2000 quarterly bulletins that were sent to nursing homes and compared
the names of nurse aides with abuse findings listed in these bulletins to
the list originally obtained from the state agency.
Appendix I: Scope and Methodology
In Georgia and Illinois,3 we reviewed lists of aides notified by the survey
agencies that their registry files would be annotated to reflect a finding
of abuse. From these lists, we determined the number of aides requesting an
administrative hearing and the number of findings actually entered in the
registries. In Pennsylvania, we reviewed a similar list, although it only
included those aides who actually had findings of abuse annotated in the
registry. For all three states, we calculated the average length of time
between when the state notified aides of its plan to annotate the registry
to the date the agency ordered that the findings be posted. Finally, we
interviewed state agency officials about their policies regarding
professionals and other staff who abuse nursing home residents.
3In Georgia, this list included letters regarding findings of abuse, while
in Illinois this list included all aides sent letters regarding findings of
abuse, neglect, or theft.
Appendix II: Comments from the Centers for Medicare and Medicaid Services
Appendix II: Comments from the Centers for Medicare and Medicaid Services
Appendix II: Comments from the Centers for Medicare and Medicaid Services
Appendix II: Comments from the Centers for Medicare and Medicaid Services
Appendix III: GAO Contact and Staff Acknowledgments
GAO Contact Geraldine Redican-Bigott (312) 220-7678
Staff Acknowledgments Lynn Filla-Clark, Tiffani Green, Barbara Mulliken, and
Christi Turner also made key contributions to this report.
Related GAO Products
Nursing Workforce: Recruitment and Retention of Nurses and Nurse Aides Is a
Growing Concern. GAO-01-750T. Washington, D.C.: May 17, 2001.
Nursing Homes: Success of Quality Initiatives Requires Sustained Federal and
State Commitment. GAO/T-HEHS-00-209. Washington, D.C.: September 28, 2000.
Nursing Homes: Sustained Efforts Are Essential to Realize Potential of the
Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September 28, 2000.
Nursing Home Care: Enhanced HCFA Oversight of State Programs Would Better
Ensure Quality. GAO/HEHS-00-6. Washington, D.C.: November 4, 1999.
Nursing Homes: HCFA Should Strengthen Its Oversight of State Agencies to
Better Ensure Quality Care. GAO/T-HEHS-00-27. Washington, D.C.: November 4,
1999.
Nursing Home Oversight: Industry Examples Do Not Demonstrate That Regulatory
Actions Were Unreasonable. GAO/HEHS-99-154R. Washington, D.C.: August 13,
1999.
Nursing Homes: HCFA Initiatives to Improve Care Are Under Way but Will
Require Continued Commitment. GAO/T-HEHS-99-155. Washington, D.C.: June 30,
1999.
Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes Has
Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.
Nursing Homes: Complaint Investigation Processes in Maryland.
GAO/T-HEHS-99-146. Washington, D.C.: June 15, 1999.
Nursing Homes: Complaint Investigation Processes Often Inadequate to Protect
Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.
Nursing Homes: Stronger Complaint and Enforcement Practices Needed to Better
Ensure Adequate Care. GAO/T-HEHS-99-89. Washington, D.C.: March 22, 1999.
Related GAO Products
Nursing Homes: Additional Steps Needed to Strengthen Enforcement of Federal
Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March 18, 1999.
California Nursing Homes: Federal and State Oversight Inadequate to Protect
Residents in Homes With Serious Care Violations. GAO/T-HEHS-98-219.
Washington, D.C.: July 28, 1998.
California Nursing Homes: Care Problems Persist Despite Federal and State
Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.
(201081)
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