Nursing Homes: Many Shortcomings Exist in Efforts to Protect
Residents from Abuse (04-MAR-02, GAO-02-448T).
The 1.5 million elderly and disabled individuals residing in U.S.
nursing homes are highly vulnerable because of their physical and
cognitive impairments. Residents typically require extensive
assistance in the basic activities of daily living, such as
dressing, feeding, and bathing, and many require skilled nursing
or rehabilitative care. Residents with dementia may be irrational
and combative. This combination of impairments heightens the
residents' vulnerability to abuse and impedes efforts to
substantiate allegations and build cases for prosecutions. GAO
found that oversight by federal and state authorities has
increased in recent years. Concerns exist that too many nursing
home residents are subjected to abuse--such as pushing, slapping,
beating, and sexual assault--by the individuals entrusted with
their care. The ambiguous and hidden nature of abuse in nursing
homes makes this offense difficult to determine. Incidents of
abuse often remain hidden, moreover, because victims, witness,
and others, including family members, are unable to file
complaints or are reluctant for several reasons, including fear
of reprisal. When complaints and incidents are reported, they are
often not reported immediately, thus harming efforts to
investigate cases and obtain necessary evidence. State registries
do not include information about offenses committed by nurse
aides in other states. Unlicensed or uncertified personnel, such
as laundry aides and maintenance workers, are not listed with a
registry or with a licensing or certification body, allowing
those with a history of abuse to be employed without detection,
unless they have an established criminal record. Moreover,
states' efforts to inform consumers about available protections
appeared limited, as the government agency pages in telephone
books of several major cities GAO visited lacked explicitly
designated phone numbers for filing nursing homes complaints with
the state. Local and state enforcement authorities have played a
limited role in addressing incidents of abuse. Several local
police departments GAO interviewed had little knowledge of the
state survey agencies' investigation activities at nursing homes
in their communities. Even the involvement of Medicaid Fraud
Control Units (MFCU)--the state law enforcement agencies with
explicit responsibility for investigating allegations of patient
neglect and abuse in nursing homes--is not automatic. A state's
MFCU investigation of cases varies according to the referral
policies at each state's survey agency. GAO found that early
involvement of the state MFCU can help in obtaining criminal
convictions. This testimony summarized a March report
(GAO-02-312).
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-448T
ACCNO: A02843
TITLE: Nursing Homes: Many Shortcomings Exist in Efforts to
Protect Residents from Abuse
DATE: 03/04/2002
SUBJECT: Crime prevention
Crimes or offenses
Elder care
Health care personnel
Law enforcement
Nursing homes
Abuse
Georgia
Illinois
Medicaid Program
Medicare Program
Pennsylvania
******************************************************************
** This file contains an ASCII representation of the text of a **
** GAO Product. **
** **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced. Tables are included, but **
** may not resemble those in the printed version. **
** **
** Please see the PDF (Portable Document Format) file, when **
** available, for a complete electronic file of the printed **
** document's contents. **
** **
******************************************************************
GAO-02-448T
United States General Accounting Office
GAO Testimony
Before the Special Committee on Aging, U.S. Senate
For Release on Delivery
Expected at 1:30 p.m.
Monday, March 4, 2002 NURSING HOMES
Many Shortcomings Exist in Efforts to Protect Residents from Abuse
Statement of Leslie G. Aronovitz Director, Health Care-Program
Administration and Integrity Issues
GAO-02-448T
Mr. Chairman and Members of the Committee:
I am pleased to be here today as you discuss the issue of abuse in nursing
homes. The 1.5 million elderly and disabled individuals residing in U.S.
nursing homes constitute a population that is highly vulnerable because of
their physical and cognitive impairments. Residents typically require
extensive assistance in the basic activities of daily living, such as
dressing, feeding, and bathing, and many require skilled nursing or
rehabilitative care. Residents with dementia may be irrational and
combative. This combination of impairments heightens the residents'
vulnerability to abuse and impedes efforts to substantiate allegations and
build cases for prosecution.
Our work for this committee on nursing home care quality has found that
oversight by federal and state authorities has increased in recent years.1
During these years, however, the number of homes cited for deficiencies
involving actual harm to residents or placing them at risk of death or
serious injury remained unacceptably high-30 percent of the nation's 17,000
nursing homes. Concerns exist that too many nursing home residents are
subjected to abuse-such as pushing, slapping, beating, and sexual assault-by
the individuals entrusted with their care. You therefore asked us to examine
efforts by nursing home oversight authorities to protect residents against
physical and sexual abuse. My remarks today will focus on (1) inherent
difficulties in measuring the extent of the abuse problem, (2) gaps in
efforts to prevent and deter resident abuse, and (3) the limited role of law
enforcement in abuse investigations. My comments reflect the findings of a
report we are issuing today. The report is based on our visits to three
states with relatively large nursing home populations and discussions with
officials at the Centers for Medicare and Medicaid Services (CMS)-the
federal agency charged with oversight of states' compliance with federal
nursing home standards.2
In brief, the ambiguous and hidden nature of abuse in nursing homes makes
the prevalence of this offense difficult to determine. CMS defines abuse in
its nursing home regulations and the states we visited maintain definition
consistent with the CMS definition. However, the states vary in
1U.S. General Accounting Office, Nursing Homes: Sustained Efforts Are
Essential to Realize Potential of the Quality Initiatives, GAO/HEHS-00-197
(Washington, D.C.: 2000).
2U.S. General Accounting Office, Nursing Homes: More Can Be Done to Protect
Residents from Abuse, GAO-02-312 (Washington, D.C.: 2002).
their interpretation and application of the definitions. For example, nurse
aides in two of the states we visited who struck residents were not
considered abusive by state survey agency officials under certain
circumstances, whereas the third state's nurse aides under similar
circumstances were consistently cited for this offense. Incidents of abuse
often remain hidden, moreover, because victims, witnesses, and others,
including family members, are unable to file complaints or are reluctant for
several reasons, including fear of reprisal. When complaints and incidents
are reported, they are often not reported immediately, thus harming efforts
to investigate cases and obtain necessary evidence.
Despite certain measures in place at various levels to prevent or deter
resident abuse, certain gaps undermine these protections. For instance,
states use a registry to keep records on nurse aides within the state, but
these state registries do not include information about offenses committed
by nurse aides in other states. Unlicensed or uncertified personnel, such as
laundry aides and maintenance workers, are not listed with a registry or
with a licensing or certification body, allowing those with a history of
abuse to be employed without detection, unless they have an established
criminal record. In addition, in the states we visited, nursing homes often
did not notify state authorities immediately of abuse allegations. Moreover,
states' efforts to inform consumers about available protections appeared
limited, as the government agency pages in telephone books of several major
cities we visited lacked explicitly designated phone numbers for filing
nursing home complaints with the state.
Local and state enforcement authorities have played a limited role in
addressing incidents of abuse. Several local police departments we
interviewed had little knowledge of the state survey agencies' investigation
activities at nursing homes in their communities. Some noted that, by the
time the police are called, others may have begun investigations, hampering
police efforts to collect evidence. Even the involvement of Medicaid Fraud
Control Units (MFCU)-the state law enforcement agencies with explicit
responsibility for investigating allegations of patient neglect and abuse in
nursing homes-is not automatic. MFCUs get involved in resident abuse cases
through referrals from state survey agencies. However, as demonstrated in
the states we visited, the extent to which a state's MFCU investigates cases
varies according to the referral policies at each state's survey agency. Our
review of alleged abuse cases suggests that the early involvement of the
state MFCU can be productive in obtaining criminal convictions.
Background
In its federal oversight role, CMS could do more to ensure that nursing home
residents are protected from abuse. Requirements for screening and hiring
prospective employees, involving local law enforcement promptly when
incidents of abuse are alleged, and ensuring the public's access to
designated telephone numbers are among the protections that CMS could
strengthen. Our report makes recommendations addressing these requirements.
To help ensure that nursing homes provide proper care to their residents, a
combination of federal, state, and local oversight agencies and requirements
is in place. At the heart of nursing home oversight activities are state
survey agencies, which, under contract with the federal government, perform
detailed inspections of nursing homes participating in the Medicare and
Medicaid programs. The purpose of the inspections is to ensure that nursing
homes comply with Medicare and Medicaid standards. CMS, in the Department of
Health and Human Services (HHS), is the federal agency with which the states
contract and is responsible for oversight of states' facility inspections
and other nursing-home-related activities.3 By law, CMS sets the standards
for nursing homes' participation in Medicare and Medicaid.
State survey agencies also investigate complaints of inadequate care,
including allegations of physical or sexual abuse. Once aware of an abuse
allegation, nursing homes are required by CMS to notify the state survey
agency immediately. They must also conduct their own investigations and
submit their findings in written reports to the state survey agency, which
determines whether to investigate further.
Certain federal and state requirements focus on the screening of prospective
nursing home employees. CMS requires nursing homes to establish policies
prohibiting employment of individuals convicted of abusing nursing home
residents. Although this requirement does not include offenses committed
outside the nursing home, the three states we visited-Georgia, Illinois, and
Pennsylvania-do not limit offenses to those committed in the nursing home
setting and have broadened the list of disqualifying offenses to include
kidnapping, murder, assault, battery, or forgery.
3CMS was formerly the Health Care Financing Administration (HCFA) and was
renamed in June 2001.
As another protective measure, federal law requires states to maintain a
registry of nurse aides-specifically, all individuals who have
satisfactorily completed an approved nurse aide training and competency
evaluation program.4 This requirement is consistent with the fact that nurse
aides are the primary caregivers in these facilities. Before employing an
aide, nursing homes are required to check the registry to verify that the
aide has passed a competency evaluation.5 Aides whose names are not included
in 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' nursing home regulations require states to add to the registry any
findings of abuse, neglect, or theft of a resident's property that have been
established against an individual. The inclusion of such a finding on a
nurse aide's record constitutes a lifetime ban on nursing home employment,
as CMS regulations prohibit homes from hiring individuals with these
offenses. As a matter of due process, nurse aides have a right to request a
hearing to rebut the allegations against them, be represented by an
attorney, and appeal an unfavorable outcome. Other nursing home
professionals who are suspected of abuse and who are licensed by the state,
such as registered nurses, are referred to their respective state licensing
boards for review and possible disciplinary action.
Among the local and state law enforcement agencies that may investigate
nursing home abuse cases are the MFCUs. MFCUs are state agencies charged
with conducting criminal investigations related to Medicare and Medicaid.
Generally, MFCUs are located in the state attorney general's office,
although they can be located in another state agency, such as the state
police. Part of their mission is to investigate patient abuse in nursing
homes. MFCUs typically receive abuse cases from referrals by state survey
agencies. If criminal charges are brought, prosecuting attorneys within the
MFCU or attorneys representing the locality take charge of the case.
4In certain instances, some individuals would be exempt from this training,
such as student nurses or nurses trained in another country.
5Nursing 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 the survey agency's website or by calling the survey
agency.
Ambiguous and Hidden Nature of Nursing Home Abuse Makes Extent of Problem
Difficult to Measure
The problem of nursing home abuse is difficult to quantify and is likely
understated for several reasons. First, states differ in what they consider
abuse, with the result that some states do not count incidents that CMS or
other states would count as abuse. Second, powerful incentives exist for
victims, their families, and witnesses to keep silent or delay the reporting
of abuse allegations. Third, some research focuses on citations of nursing
homes for abuse-related violations, which are maintained in a CMS database,
but these data reflect only the extent to which facilities fail to comply
with federal or state regulations. Abuse incidents that nursing homes handle
properly are not counted, because no violation has been committed that
warrants a citation.
States Do Not Share Common View of Resident Abuse
Some states may not be citing nurse aides for incidents that other states
would consider abuse. Based on the definition of abuse in the Older
Americans Act of 1965,6 CMS defines abuse as "the willful infliction of
injury, unreasonable confinement, intimidation, or punishment with resulting
physical harm, pain or mental anguish."7 States maintain their own
definitions that are consistent with the CMS definition. Our review of case
files showed that states interpret and apply these definitions differently.
For example, on the basis of the abuse cases reviewed, we noted that 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. The Georgia officials told us that, to cite an aide for
abuse, they must find that the individual's actions were intentional. They
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. Among the Georgia
case files we reviewed, we found 5 cases in which the aides struck back
after residents hit them or otherwise made physical contact. In all five
cases, Georgia officials had determined that the aides' behavior was not
abusive because the residents were combative and the aides did not intend to
hurt the residents.
In Pennsylvania, officials emphasized other factors to determine a finding
of abuse. They said that establishing intention was important, but they
642 U.S.C. sect. 2002 (1994). 742 C.F.R. sect. 488.301 (2001).
would be unlikely to cite an aide for 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. In several cases reviewed in
which residents were bumped or slapped and reported being in pain as the
result of aides' actions, the survey agency officials decided not to take
action against the aides because, in their view, the residents had no
apparent physical injuries.
In contrast, the Illinois survey agency considers any nonaccidental injury
to be abuse. Thus, incidents not considered abusive in Georgia and
Pennsylvania-reflex actions and incidents not involving serious injury or
obvious pain-could be considered abusive in Illinois. In the 17 Illinois
case files we reviewed involving either combative residents or residents who
did not suffer serious injury, officials found that aides had been abusive.
When Illinois handled a case similar to a Georgia case in which a nursing
home employee witnessed a nurse aide strike a combative resident, the state
not only included this information in the individual's nurse aide registry
file, it also referred the matter to the state's MFCU, resulting in a
criminal conviction.8
CMS officials indicated that states may use different definitions of abuse,
as long as the definitions are at least as inclusive as the CMS definition.
The officials agreed that intent is a key factor in assessing whether an
aide abused a resident but argued that intent can be formed in an instant.
In their view, 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.
People May Be Unable or Reluctant to Report Abuse Allegations
The physical and mental impairments typical of the nursing home population
handicap residents' ability to respond to abuse. Some residents lack the
ability to communicate or even realize that they have been abused, while
others are reluctant to report abuse because they fear reprisal. For these
reasons, elder abuse in nursing homes is likely
8As a result, the 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 people with disabilities.
underreported or often not reported immediately. In some cases, residents
are unable to complain about what was done to them. In other cases, family
members may hesitate to report their suspicions because they fear
retribution or that, if reported, the resident will be asked to leave the
home. In still other cases, facility staff fear losing their jobs or
recrimination from coworkers, while facility management may not want to risk
adverse publicity or sanctions from the state. In our file reviews, we saw
evidence that family members, staff, and management did not immediately
report allegations of abuse. (See figure.)
Figure: Examples of Allegations Not Immediately Reported
* A resident reported to a licensed practical nurse that she had been raped.
Although the nurse recorded this information in the resident's chart, she
did not notify the facility's management. The nurse also allegedly
discouraged the resident from telling anyone else. About 2 months later, the
resident was admitted to the hospital for unrelated reasons and told
hospital officials she had been raped. Once hospital officials notified the
police, an investigation was conducted and revealed that the resident had
also informed her daughter of the incident, but the daughter dismissed it.
The resident later told police that she did not report the incident to other
staff 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 aide who threw the water on the resident was
fired and was cited for resident abuse in the state's nurse aide registry.
* Nursing home management failed to promptly notify the state survey agency
of an incident in which an aide slapped a resident and visibly bruised the
victim's face. Although the home investigated the situation and took
appropriate action by quickly suspending and ultimately firing the aide, it
did not notify the state survey agency until 11 days after the abuse took
place.
Source: Case files from state survey agencies in Georgia and Pennsylvania.
Data on States' Nursing Home Citations Provide Little Information About
Resident Abuse
Data from states' annual inspections of nursing homes, while a source of
information about facility compliance with nursing home standards, provide
little precision about the extent of care problems, of which resident
abuse-related problems are a subset. Abuse-related violations committed by
nursing homes include failure to protect residents from sexual, physical, or
verbal abuse; failure to properly investigate allegations of resident abuse
or to ensure that nursing home staff have been properly screened before
employment; and failure to develop and implement written policies
prohibiting abuse.
In 2000, we reported on the wide variation across states in surveyors'
identification and classification of serious deficiencies-conditions under
which residents were harmed or were in immediate jeopardy of harm or
death.9 The extent to which abuse-related violations are counted as serious
deficiencies depends on how the surveyor classifies the severity of the
deficiency identified. In our analysis, the problem of "interrater
reliability"-that is, individual differences among surveyors in citing homes
for serious deficiencies-was one of several factors contributing to the
difference of roughly 48 percentage points across states in the proportion
of homes cited in 1999 and 2000 for serious deficiencies. The variation
ranged from about 1 in 10 homes cited in one state to more than 1 in 2 homes
cited in another.
We also found that one state's tally of nursing homes with serious
deficiencies would have been highly misleading as an indicator of serious
care problems. Of the homes the state surveyed during the 1999-2000 period,
it found 84 to be "deficiency free." However, when we cross-checked the
annual inspection results for these homes with the homes' history of
complaint allegations, we found that these deficiency-free homes had
received 605 complaints and that significant numbers of these complaints
were substantiated when investigated. This discrepancy illustrates the
difficulty of estimating the extent of resident abuse using nursing home
inspection data.
Nursing home residents' inability to protect themselves accentuates the need
for strong preventive measures to be in place in both nursing homes and the
agencies overseeing them. Although certain measures are in place, we found
them to be, in some cases, incomplete or insufficient. In the states we
visited, efforts to screen employees and achieve prompt reporting fell short
of creating a net sufficiently tight to protect residents from potential
offenders.
Gaps Exist in Efforts to Prevent or Deter Resident Abuse
Sources Used to Screen Nursing homes have available three main tools to
screen prospective Prospective Employees Do employees: criminal background
checks conducted by local law Not Contain Complete or enforcement agencies,
criminal background checks conducted by the
Federal Bureau of Investigation (FBI), and state registries listing
Up-to-Date Information information on nursing home aides, including any
findings of abuse committed in the state's facilities. The information
included in these sources, however, is often not complete or up to date.
9GAO/HEHS-00-197.
State and local law enforcement officials in the three states we visited
conduct background checks on prospective nursing home employees, but these
checks are made only state wide. Consequently, individuals who have
committed disqualifying crimes-including kidnapping, murder, assault,
battery, and forgery-may be able to pass muster for employment by crossing
state lines. On request, the FBI will conduct background checks outside the
prospective employee's state of residence, but in some states these requests
are rarely made, according to an FBI official.
Some states allow individuals to begin working before facilities complete
their background checks. Pennsylvania permits new employees to work for 30
days and Illinois, for 3 months, before criminal background checks are
completed. In contrast, Georgia requires that background checks be completed
within 3 days of the request and interprets this requirement to mean that
the checks must be completed before prospective employees may assume their
duties.
Of the three states we visited, only Illinois requires that the results of
criminal background checks on prospective nurse aides be reported to the
state survey agency, which enters the information in the registry. A 1998
survey conducted by HHS' Office of Inspector General reported that Illinois
was the only state with this requirement.10 Nursing homes in Illinois
checking the state registry are able to determine if an aide has a
disqualifying conviction well before an offer of employment is made and a
criminal background check is initiated. Alternatively, the survey agencies
in states without this requirement do not have the information necessary to
warn their respective nursing home communities about inappropriate
individuals seeking employment.
Nurse aide registries, designed to maintain background information on
nursing home aides, also contain information gaps that can undermine
screening efforts. To cite an individual in the state's registry for a
finding of abuse, authorities must first establish a finding, notify the
individual of the intent to "annotate" the registry, and if the individual
requests, hold a hearing to consider whether the finding is warranted.
Specifically, the individual must be notified in writing of the state's
intent to annotate the registry and be given 30 days from the date of the
state's notice to make a written request for a hearing. Because the hearing
may not be completed
10HHS Office of Inspector General, Safeguarding Long-Term Care Residents,
A-12-97-00003 (Washington, D.C.: Sept. 14, 1998).
for several months after it is requested and decisions may not be rendered
immediately, additional time may elapse. As with background checks, state
registries do not track an aide's offenses committed at nursing homes in
other states.
Our analysis of nurse aide records from 1999 indicated that hearings to
reconsider an abuse finding added, on average, 5 to 7 months to the process
of annotating an individual's record in the state registry. During this
time, residents of other nursing homes were at risk because, even if an aide
was terminated from one home, the individual could find new employment in
other homes before the state's registry included information on the
individual's offense. Thus, because of the amount of time that can elapse
between the date a finding is established and the date it is published, the
use of nurse aide registries as a screening tool alone is inadequate.
Facilities can screen licensed personnel, such as nurses and therapists, by
checking the records of licensing boards for disciplinary actions, but
screening other facility employees, such as laundry aides, security guards,
and maintenance workers, is limited to criminal background checks. Unless
such employees are convicted of an offense, problems with their prior
behavior will not be detected. No centralized source contains a record of
substantiated abuse allegations involving these individuals. Even when abuse
violations identified through nursing home inspections are cited, they
result in sanctions against the homes and not the employees. We identified
10 uncertified and unlicensed employees in the 158 cases we reviewed who
allegedly committed abuse. One of the 10 pled guilty in court, thus
establishing a criminal record. However, the disposition of five of these
cases left no way to track the individuals through routine screening
channels. Three of the nine-all of whom were dismissed from their
positions-were investigated by law enforcement but were not prosecuted. Two
others were also terminated by their nursing home employers but were not the
subject of criminal investigations. (In these cases, physical abuse was
alleged but the residents did not sustain apparent injuries.) The remaining
four cases involved instances in which the allegations proved unfounded or
the evidence was inconsistent; the individuals were thus not tracked, as
appropriate.
In 1998, the HHS Office of the Inspector General recommended developing a
national abuse registry and expanding state registries to include not only
aides but all other nursing home employees cited for abuse offenses.11 A
firm that CMS (then the Health Care Financing Administration) contracted
with in September 2000 is currently conducting a feasibility study regarding
the development of a national registry that would centralize nurse aide
registry information and include information on all nursing home employees.
The contractor intends to report its findings in March 2002.
Efforts to Alert Authorities of Abuse Incidents and Allegations Lack
Sufficient Rigor
Enlisting the help of the facilities and the public to report incidents and
allegations of abuse can supplement other efforts to protect nursing home
residents. However, in the states we visited, nursing homes' performance in
notifying the survey agencies promptly was well below par. In addition,
access to information on phone numbers the public could use for filing
complaints was limited.
In the three states we visited, nursing homes are required to notify their
state survey agencies of abuse allegations immediately, which the agencies
define as the day the facility becomes aware of the incident or the next
day. Using this standard, we examined 111 abuse allegations filed by the
three states' nursing homes. We found that, for these allegations, the homes
in Pennsylvania notified the state late 60 percent of the time; in Illinois,
late almost half of the time; and in Georgia, late about 40 percent of the
time. Each state had several cases for which homes notified the state a week
or more late and in each state at least one home notified the state more
than 2 weeks late. Such time lags delay efforts by the survey agencies to
conduct their own prompt investigations and ensure that nursing homes are
taking appropriate steps to protect residents. In these situations,
residents remain vulnerable to additional abuse until corrective action is
taken.
As a nursing home resident's family and friends are another essential
resource for reporting abuse to the state authorities, increasing public
awareness of the state's phone number for filing complaints should be a high
priority. CMS requires nursing homes to post phone numbers for making
complaints to the state. However, in major cities of the states we visited,
phone numbers specifically for lodging complaints to the state survey agency
were not listed in the telephone book. This was the case in
11HHS Office of Inspector General, A-12-97-00003.
Chicago and Peoria, Illinois; in Athens and Augusta, Georgia; and in
Philadelphia and Pittsburgh, Pennsylvania.
At the same time, the telephone books we examined listed numbers in the
government agency pages for organizations that appeared to be appropriate
for reporting abuse allegations but did not have authority to take action.
In the telephone books of selected cities in the three states we visited, we
identified listings for 42 such entities that were not affiliated with the
state survey agencies. Of these, six entities said they were capable of
accepting and acting on abuse allegations. These included long-term care
ombudsmen and adult protective services offices. The other 36 either could
not be reached or could not accept complaints, despite having listings such
as the "Senior Helpline" or the "Fraud and Abuse Line." Sometimes these
entities attempted to refer us to an appropriate organization to report
abuse, with mixed success. For example, calls we made in Georgia resulted in
four correct referrals to the state survey agency's designated complaint
intake line but also led to five incorrect referrals. Five entities offered
us no referrals.
The involvement of law enforcement in protecting nursing home residents has
generally been limited. Owing to the nature of the nursing home population,
developing adequate evidence to investigate and prosecute abuse cases and
achieve convictions is difficult. The states we visited had different
policies for referring cases to law enforcement agencies.
Law Enforcement's Involvement in Protecting Residents Is Limited
Residents' Impairments Weaken Law Enforcement's Efforts to Develop Cases
Critical evidence is often missing in elder abuse cases, precluding
prosecution. Our review of states' case files included instances in which
residents sustained black eyes, lacerations, and fractures but were unable
or unwilling to describe what had happened. However, despite what appeared
to be signs of abuse, investigators could neither rule out accidental
injuries nor identify a perpetrator.
The cases that are prosecuted are often weakened by the time lapse between
the incident and the trial. Law enforcement officials and prosecutors
indicated that the amount of time that elapses between an incident and a
trial can ruin an otherwise successful case, because witnesses cannot always
retain essential details of the incident. For example, in one case we
reviewed, a victim's roommate witnessed an incident of abuse and positively
identified the abuser during the investigation. By the time of the trial
nearly 5 months later, however, the
witness could no longer identify the suspect in the courtroom, prompting the
judge to dismiss the charges. Law enforcement officials told us that,
without testimony from either a victim or witness, conviction is unlikely.
Similarly, resident victims may not survive long enough to participate in a
trial. A recent study of 20 sexually abused nursing home residents revealed
that 11 died within 1 year of the abuse.12
Local Law Enforcement Authorities in States Visited Not Frequently Involved
With Nursing Home Abuse Incidents
In the states we visited, local law enforcement authorities did not have
much involvement in nursing home abuse cases. Our discussions with officials
from 19 local law enforcement agencies indicate that police are rarely
summoned to nursing homes to investigate allegations of abuse. Of those 19
agencies, 15 indicated that they had little or no contact with their state's
survey agency regarding abuse of nursing home residents in the past year. In
fact, several police departments we interviewed were unaware of the role
state survey agencies play in investigating instances of resident abuse.
Several of the police officials we met with noted that, even when the police
are called, other entities may have begun investigating, hampering further
evidence collection.
Involving law enforcement authorities does not appear to be common for abuse
incidents occurring in nursing homes. Facility residents and family members
may report allegations directly to the facility. There is no federal
requirement compelling nursing homes that receive such complaints to contact
local law enforcement, although some states, including Pennsylvania, have
instituted such requirements.
MFCUs Not as Involved as Their Mission Would Suggest
The involvement of MFCUs-the state law enforcement agencies whose mission is
to, among other things, investigate allegations of patient neglect and abuse
in nursing homes-is not automatic. MFCUs get involved in resident abuse
cases through referrals from state survey agencies. Each of the states we
visited had a different referral policy. In Pennsylvania, by agreement, the
state's MFCU typically investigates nursing home neglect matters, while
local law enforcement agencies investigate nursing home abuse. In contrast,
the survey agencies in Illinois and Georgia both refer allegations of
resident abuse to their states' MFCUs, but these two states' referral
policies also differ from one another.
12Ann W. Burgess, Elizabeth B. Dowdell, and Robert A. Prentky, "Sexual Abuse
of Nursing Home Residents," Journal of Psychosocial Nursing, Volume 38, No.
6, June 2000.
Of the cases we reviewed in Illinois, the survey agency consistently
referred all reports of physical and sexual abuse to the state's MFCU,
regardless of whether the source of the report was an individual or a
nursing facility. The Illinois MFCU, in turn, determined whether the cases
warranted opening an investigation. The Georgia survey agency, on the other
hand, screened its allegations before referring cases to the state's MFCU,
basing its assessment of a case's merit on the severity of the harm done and
the potential for the MFCU to obtain a criminal conviction.
Our review of case files from Illinois and Georgia suggests that the more
the state's MFCU is involved in resident abuse investigations, the greater
the potential to convict offenders.13 (This case file review consisted of
only those cases that were opened in 1999 and closed at the time of our
review.) The Illinois MFCU obtained 18 convictions from 50 unscreened
referrals. In Georgia, however, where the survey agency tried to avoid
referring weak cases to the state's MFCU, 14 of 52 cases were referred and 3
resulted in convictions. The state's small number of convictions from the
cases opened in 1999 was not consistent with the expectation that
prescreened cases would have greater potential for successful prosecution.14
In 2000, the Georgia survey agency substantially changed its MFCU referral
policy, leading to a four-fold increase in the state's total number of
referrals from the previous year. The policy change followed a meeting
between survey agency and MFCU officials, at which the MFCU indicated a
willingness to investigate instances that the survey agency had previously
assumed the MFCU would have dismissed-such as incidents involving nursing
home employees slapping residents.
The timeliness of referrals made to the MFCU may also play a role in
achieving favorable results. Of the 64 cases referred in the two states, we
determined that the Illinois survey agency referred its cases to the MFCU
earlier than did Georgia's. Illinois referred its cases, on average, within
3 days after receiving a report of abuse, whereas Georgia referred its
cases, on average, 15 days after learning about an allegation.
13Because of Pennsylvania's referral policy, its MFCU files, with a few
exceptions, did not include resident abuse cases.
14Georgia's conviction results are lower than might be expected also given
the state survey agency's practice of disregarding abuse allegations in
which patient provocation is a factor.
Concluding Observations
The problem of resident abuse in nursing homes is serious but of unknown
magnitude, with certain limitations in the adequacy of protections in the
states we visited. Nurse aide registries provide information on only one
type of employee, are difficult to keep current, and do not capture offenses
committed in other states. At the same time, local law enforcement
authorities are seldom involved in nursing home abuse cases and therefore
are not in a position to help protect this at-risk population. MFCUs, which
are likely to have expertise in investigating nursing home abuse cases, must
rely on the state survey agencies to refer such cases. When a state's
referral policy is overly restrictive, the MFCU is precluded from
capitalizing on its potential to bring offenders to justice.
Several opportunities exist for CMS to establish new safeguards and
strengthen those now in place. Our report includes recommendations for CMS
to, among other things, clarify what is included in CMS' definition of abuse
and increase the involvement of MFCUs in examining abuse allegations.
Without such improvements, vulnerable nursing home residents remain
considerably ill-protected.
Mr. Chairman, this concludes my prepared remarks. I will be pleased to
answer any questions you or the committee members may have.
Contact and For further information regarding this testimony, please contact
me or Geraldine Redican-Bigott, Assistant Director, at (312) 220-7600. Sari
Acknowledgments Bloom, Hannah Fein, and Lynn Filla-Clark made contributions
to this statement.
(290164)
*** End of document. ***