[Senate Hearing 107-401] [From the U.S. Government Publishing Office] S. Hrg. 107-401 SAFEGUARDING OUR SENIORS: PROTECTING THE ELDERLY FROM PHYSICAL AND SEXUAL ABUSE IN NURSING HOMES ======================================================================= HEARING before the SPECIAL COMMITTEE ON AGING UNITED STATES SENATE ONE HUNDRED SEVENTH CONGRESS SECOND SESSION __________ WASHINGTON, DC __________ MARCH 4, 2002 __________ Serial No. 107-20 Printed for the use of the Special Committee on Aging U.S. GOVERNMENT PRINTING OFFICE 78-785 WASHINGTON : 2002 ________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 SPECIAL COMMITTEE ON AGING JOHN B. BREAUX, Louisiana, Chairman HARRY REID, Nevada LARRY CRAIG, Idaho, Ranking Member HERB KOHL, Wisconsin CONRAD BURNS, Montana JAMES M. JEFFORDS, Vermont RICHARD SHELBY, Alabama RUSSELL D. FEINGOLD, Wisconsin RICK SANTORUM, Pennsylvania RON WYDEN, Oregon SUSAN COLLINS, Maine BLANCHE L. LINCOLN, Arkansas MIKE ENZI, Wyoming EVAN BAYH, Indiana TIM HUTCHINSON, Arkansas THOMAS R. CARPER, Delaware PETER G. FITZGERALD, Illinois DEBBIE STABENOW, Michigan JOHN ENSIGN, Nevada JEAN CARNAHAN, Missouri CHUCK HAGEL, Nebraska Michelle Easton, Staff Director Lupe Wissel, Ranking Member Staff Director (ii) C O N T E N T S ---------- Page Opening Statement of Senator John Breaux......................... 1 Prepared statement of Senator Larry E. Craig..................... 4 Perpared statement of Senator Harry Reid......................... 4 Prepared statement of Senator Debbie Stabenow.................... 5 Prepared statement of Senator Tim Hutchinson..................... 5 Statement of Senator Ron Wyden................................... 6 Statement of Senator Herb Kohl................................... 7 Statement of Senator Blanche Lincoln............................. 8 Panel I Bruce Love, Son of physical abuse victim Helen Love, Mill Creek, CA............................................................. 9 Barbara Becker, Daughter-in-law of physical abuse victim Helen Straum-kamp, Evansville, IN.................................... 17 Michael Peters, Esq., Counsel for rape victim Jane Doe, Orlando, FL............................................................. 23 Panel II Leslie Aronovitz, Director, Health Financing and Public Health Issues, Health, Education and Human Services Division, General Accounting Office, Washington, DC...................... 34 Mark Malcolm, Coroner, Little Rock, AR........................... 52 Charles Fuselier, Sheriff, St. Martinville, Louisiana on behalf of the National Sheriffs' Association.......................... 65 Henry Blanco, Board Member, National Association of Adult Protective Services Administrators, Phoenix, AZ................ 116 Delta Holloway, RN, Boise, ID, on behalf of American Health Care Association.................................................... 124 APPENDIX Statement submitted by Deborah Bradford.......................... 143 Letter from Carol Brown.......................................... 154 Statement of W. Garrett Boyd..................................... 156 Statement from Cathy Newman...................................... 158 Statement of Bette Vidrine....................................... 160 Statement of Cassie Tracy........................................ 164 Letter and additional material submitted by Robert Marshall, Delaware State Senate.......................................... 167 Statement of the National Association of Orthopaedic Nurses...... 173 Testimony from Toby Edelman, Center for Medicare Advocacy........ 178 (iii) SAFEGUARDING OUR SENIORS: PROTECTING THE ELDERLY FROM PHYSICAL AND SEXUAL ABUSE IN NURSING HOMES ---------- MONDAY, MARCH 4, 2002 U.S. Senate, Special Committee on Aging, Washington, DC. The committee met, pursuant to notice, at 1:32 p.m., in room SD-628, Dirksen Senate Office Building, Hon. John Breaux (chairman of the committee) presiding. Present: Senators Breaux, Kohl, Wyden and Lincoln. OPENING STATEMENT OF SENATOR JOHN BREAUX, CHAIRMAN The Chairman. The committee will please come to order. Good afternoon to everyone. We thank all of our guests for being with us. I also want to acknowledge our colleagues who are here for what I consider to be a very important hearing this afternoon. I thank all of our guests in the audience and particularly thank the witnesses, who we will introduce in just a moment, for their testimony. Today, we will examine a subject that is difficult for most of us to fathom, and that is physical and sexual abuse of individuals who reside in nursing homes. It is a subject that really should not exist. I genuinely wish that there was no issue of physical and sexual abuse in nursing homes to investigate at all. Sadly, this investigation is another chapter in a long history for too long of abuses and problems in nursing homes. We as a nation must not tolerate abuse of our senior citizens in any form nor in any place. The Special Committee on Aging spent 14 years from way back in 1963 to 1977 investigating nursing home care. Other chairmen of this Special Committee on Aging and other committees in the Congress focused their attention on this particular problem after 1977. We continue the work that began in 1998. Now, in the year 2002, 40 years have passed without a clear determination on the conditions of nursing homes as far as safety for our senior citizens. Let me say up front and at the beginning that this hearing is not an indictment in any way of the entire nursing home industry. I recognize, this committee recognizes, the Congress recognizes, that there are many very fine nursing home facilities in this country that provide critical quality health care that is needed and necessary, and that also provides those quality care provisions in a very safe manner. However, the prevalence of abuse highlighted by this investigation has forced me to come to grips with the fact that our nation's public policy has been unable to adequately ensure the safety of our seniors in nursing homes. This prompts me once again to look toward promoting and supporting other long-term care alternatives to nursing home care. This becomes all the more critical as the baby boom generation draws closer to senior citizen status. Today, the focus is on the response of law enforcement and other agencies to physical and sexual abuse in nursing homes. Our committee asked the General Accounting Office, the investigative arm of the Congress, to investigate and determine how law enforcement responds to these crimes after we received complaints of confusion about where to make these complaints of abuse and complaints about which agency was responsible for investigating these allegations of abuse. The General Accounting Office will share its findings in the report that I am releasing today. GAO's report not only addresses law enforcement's response to reports of physical and sexual abuse, but also finds the problem is even greater, that there is a pervasive lack of coordination among all the agencies that are charged with the responsibilities of protecting our seniors. By this, I mean law enforcement, social services, and also government. To illustrate this point, I had a chart prepared that reflects the myriad of agencies involved in responding to the claims of physical and sexual abuse in nursing homes. Immediately it becomes very clear, in my opinion, that while many agencies have jurisdiction, all too often no agency has the ultimate responsibility to investigate the allegations of physical and sexual abuse in nursing homes. When everyone is in charge, it is clear that no one is in charge. We need to know that seniors in nursing homes are treated like everyone else when a crime does occur. We need to know that trained criminal investigators are notified immediately and can provide the evidence required for any necessary prosecutions. We cannot continue to provide a system that discriminates against seniors with a bureaucratic reporting system that leaves abusive crime scenes stale and incapable of forensic investigation. A crime is a crime no matter where it is committed. Whether it is on a street corner in an urban city, or whether it is in a nursing home, it matters not. There is a crime and somewhere there is a criminal. One last point I would like to make relates to the International Association of Chiefs of Police. This committee made repeated attempts to invite this association to represent the interests of police officers and detectives throughout the Nation with regard to how nursing home crimes are addressed. I recognize that there are strong elder abuse units in police departments throughout the Nation that are doing outstanding work in this area. My own State of Louisiana is represented by Sheriff Charlie Fuselier, who is doing a great job in this particular area and will tell the committee about it. However, I would like to read into the record a portion of the letter that I received from the International Association of Chiefs of Police declining this committee's invitation to participate in the hearing today, and it states the following: ``The IACP membership has not yet taken a formal policy position on the issue. Let me assure you that this is not an indication of the level of importance it believes this issue merits.'' That is simply, to me, unacceptable for the national association representing the police chiefs in their law enforcement responsibilities. I believe the letter concisely makes the point of this hearing: too many police departments do not have abuse of seniors in nursing homes anywhere on their radar screen. Out of sight, out of mind is not acceptable. I think it is clear that we have much work to do to ensure that they are better trained and sensitized to the crimes against seniors that occur in institutions. Moreover, it is essential that they not be treated differently from anyone else outside institutions or treated differently because of their age. Before we introduce our first panel of witnesses, I'd like to recognize our colleagues on the Aging Committee. First, Senator Ron Wyden. [The prepared statements of Senator Breaux, Senator Craig, Senator Reid, Senator Stabenow, and Senator Hutchinson follows:] Prepared Statement of Senator John Breaux Good morning. I would like to thank all of you, especially my fellow members, for attending today's investigative hearing. I would also like to thank the Committee's Ranking Member, Senator Larry Craig, for his support throughout this investigation. Finally, and most importantly, I would like to thank the witnesses for being here today. Your testimony will assist the Committee greatly in determining how best to address the vital issues raised today. Today, we will examine a subject that is difficult for any of us to fathom - physical and sexual abuse in nursing homes. It's a subject that should not exist, and I genuinely wish that there was no issue of physical and sexual abuse in nursing homes to investigate at all today. Sadly, this investigation is but another chapter in a long history - far too long - of abuses and problems in nursing homes. We as a country must not tolerate abuse of our senior citizens in any form. The Special Committee on Aging spent 14 years from 1963 to 1977 investigating nursing home care. Other Chairmen of the Special Committee on Aging and other committees focused attention on the problems after 1977. Senator Grassley and I continued that work beginning in 1998. Now, in 2002, 40 years have passed without a determination that nursing homes are safe for seniors. Let me say upfront that this hearing is not an indictment of the entire nursing home industry. I recognize there are many fine nursing homes in this country that provide quality care that is safe from abuse. However, the prevalence of abuse highlighted by this investigation has forced me to come to grips with the fact that our nation's public policy has been unable to insure the safety of our seniors in nursing homes. This prompts me once again to look toward promoting and supporting other long-term care alternatives to nursing home care. This becomes all the more critical as the Baby Boomers draw closer to senior citizen status. Today, the focus is on the response of law enforcement and other agencies to physical and sexual abuse in nursing homes. The Committee asked the Government Accounting Office to investigate and determine how law enforcement responds to these crimes after we received complaints of confusion about where to make complaints of abuse and complaints about which agency was responsible for investigating abuse. GAO will share its findings in the report I am releasing today. GAO's report not only addresses law enforcement's response to reports of physical and sexual abuse in nursing homes but also finds the problem is even greater - there is a pervasive lack of coordination among all the agencies charged with responsibilities of protecting our seniors - by this I mean, law enforcement, social services and government. To illustrate this point, I had a chart prepared that reflects the myriad of agencies involved in responding to claims of physical and sexual abuse in nursing homes. Immediately, it becomes clear that while many agencies have jurisdiction, all too often, no agency has ultimate responsibility to investigate allegations of physical and sexual abuse in nursing homes. We need to know that seniors in nursing homes are treated like anyone else when a crime does occur. We need to know that trained criminal investigators are notified immediately and can provide the evidence required for any necessary prosecutions. We cannot continue to provide a system that discriminates against seniors with a bureaucratic reporting system that leaves abuse scenes stale and incapable of forensic investigation. One last point that I'd like to make relates to the International Association of Chiefs of Police. This Committee made repeated attempts to invite this association to represent the interests of police officers and detectives throughout the nation with regard to how nursing home crimes are addressed. I recognize that there are strong elder abuse units in police departments throughout the nation that are doing exemplary work in this area. However, I would like to read into the record a portion of the letter I received from the national association, declining the Committee's invitation to participate in the hearing today. It states the following: ...the IACP membership has not yet taken a formal policy position on the issue. Let me assure you that this is not an indication of the level of importance the IACP believes this issue merits.... I believe this letter concisely makes the point of this hearing. Too many police departments do not have abuse of seniors in nursing homes anywhere on their radar screen. I think it is clear that we have much work to do to ensure that they are better trained and sensitized to the crimes against seniors in institutions. Moreover, it is essential that they not be treated differently from anyone else outside institutions or treated differently because of their age. Before introducing the witnesses, I would like to recognize other Senators for any opening remarks. ------ Prepared Statement of Senator Larry Craig We are here this morning to examine the serious and growing problem of physical abuses of our nation's most vulnerable citizens. I want to begin by thanking Senator Breaux for convening this very important investigative hearing. We began this committee's investigation on Elder Abuse last year, including a discussion of abuses that happen in the elder's own home. I am pleased to see that this committee is continuing to explore different aspects of the problem, including instances of abuse that occur in nursing homes. The challenges we face in remedying nursing home abuse are formidable. Employees of nursing homes with the legal duty to report suspected occurrences of abuse often fail to report to appropriate state and local agencies, including law enforcement. When cases are reported, there is often a long delay. Evidence is allowed to perish. When prosecutors finally get these cases, they have trouble acquiring reliable testimony from victims and other witnesses. I'm hoping to hear today how existing state and local efforts to combat abuse in nursing homes might be enhanced by more collaborative approaches. In the state of Idaho, we have interagency protocols related to elder abuse responses both at the state and local level that have been quite effective. These formal protocols have the signatures of top officials in Adult Protection, the Ombudsman program, survey agencies, law enforcement, and prosecutors, demonstrating their commitment to work together on these cases. The protocols require specific reporting, facilitate collaborative investigations, and allow the exchange of client information between professionals acting on behalf of victims. Additionally, existing federal resources should be better targeted to provide technical training in the identification, investigation, and prosecution of crimes perpetrated against the elderly in nursing homes and in the community. A high level of competence and expertise is necessary to effectively take on these very difficult cases. I look forward to hearing the testimony today. ------ Prepared Statement of Senator Harry Reid Good afternoon Chairman Breaux and Ranking Member Craig. The physical and sexual abuse of seniors is an unpleasant issue--but we cannot afford to look the other way and pretend that this problem does not exist. However unthinkable such crimes against vulnerable seniors are, they really do occur. They are not isolated incidents--and the number of victims will only continue to increase as our population ages--unless we take effective steps to prevent abuse. Certainly we must make sure that crimes against the elderly are reported and those responsible are prosecuted. Even more importantly, we need to do everything we can to prevent abuse before it happens. For the past several years, Senator Kohl and I have focused our efforts on protecting our most frail and vulnerable seniors from workers with criminal backgrounds and known histories of abuse. We are the sponsors of the Patient Abuse Prevention Act, legislation that would require all long-term care facilities to conduct criminal background checks on potential employees. The Patient Abuse Prevention Act would also create a national registry of abusive workers. This registry would give long-term care facilities the ability to weed out workers who are known abusers. We need a national registry so offenders cannot continue to cross state lines and find employment in new facilities where they may continue to prey on the elderly. Our bill is a culmination of several years of work on this issue, including numerous hearings in this committee. It is an inexpensive, common-sense proposal that we are confident will prevent many cases of abuse. In fact, a report by the Department of Justice revealed that 7 percent of FBI background checks on potential long-term care workers uncovered serious criminal convictions--including assault, rape and kidnapping. Our bill would help nursing homes identify these dangerous workers applying for jobs. I understand that abuse of seniors is a complex problem and our legislation is only part of the solution. But as you listen to the stories today, I am sure you will agree that if our bill could prevent only one incident of abuse, it would be worth it. I urge my colleagues to join Senator Kohl and me in supporting the Patient Abuse Prevention Act, and I look forward to learning about other ways to protect our nation's seniors. ------ Prepared Statement of Senator Debbie Stabenow Chairman Breaux, thank you for convening a hearing today on the topic of abuse in nursing homes. While it is difficult for us to imagine that anyone would abuse a patient in a nursing home, the sad reality is that this abuse does occur. Today's hearing will help shed light on this critical issue and perhaps help find solutions. The General Accounting Office (GAO) study conducted for this committee on abuse in nursing homes discovered that it is difficult for families to even discuss this issue. GAO estimates that much abuse is under-reported. Combine that with GAO's findings that there are many barriers to reporting abuse, and that many cases are not adequately investigated nor prosecuted, and we clearly have a problem. GAO's final recommendation is that the Center for Medicare and Medicaid Services should work to facilitate the reporting, investigation, and prevention of abuse to ensure protection of nursing home residents. While this is a difficult issue for families to discuss, I think it is very important that this committee be an open forum so that we can consider the recommendations made by GAO. I also look forward to hearing from the other witnesses who will provide valuable information. I am strongly committed to ending abuse and neglect in nursing homes and I am pleased that our committee is taking on this issue that is so important for seniors and families. ------ Prepared Statement of Senator Tim Hutchinson Mr. Chairman, thank you for holding this critically important hearing today. Physical and sexual abuse of any kind is abhorrent and intolerable, but it is especially so in nursing homes, where vulnerable, unknowing, elderly patients are the victims. I know that some of the testimony we will hear today tells of abuse that is incomprehensible. While these are difficult truths to fathom, we must be aware of what is happening and work together to convict bad actors and prevent further abuse. In my home State of Arkansas, long-term care facilities have operated for many years under several state laws aimed at reducing the incidence of abuse and improving the quality of care. The Adult Abuse Act of 1983, for example, requires incident reporting of suspected abuse or neglect of residents. The Staffing Requirements for Nursing Facilities and Nursing Homes Act of 1999 has enabled Arkansas nursing homes to achieve minimum staffing levels of direct care workers that exceed the requirements of Arkansas' bordering state neighbors. Furthermore, and directly related to today's hearing topic, Arkansas nursing homes conduct criminal background checks of their direct care staff in compliance with the Mandatory Criminal Records Checks for Applicants, Elder Choices Providers and Employees Act of 1997. As Mark Malcolm, the Pulaski County Coroner, will mention in his testimony today, Arkansas also enacted legislation in 1999 to require all resident deaths to be reported to their county coroners. This legislation was strongly supported by the nursing home industry and patient groups throughout Arkansas. Arkansas nursing homes and legislators have taken steps to address this deplorable crime against the elderly. We must continue to be vigilant, however, both in Arkansas and nationwide, to prevent such abuse. I look forward to hearing our witnesses today and thank all of them in advance for their testimony. STATEMENT OF SENATOR RON WYDEN Senator Wyden. Thank you very much, Mr. Chairman, and let me commend you for holding this hearing. This gives us a chance to come back to an issue that must not be shunted aside and thank you for all of your leadership. Mr. Chairman and colleagues, having been involved in this issue now for over 20 years, dating back to my days as co- director of the Oregon Gray Panthers, I can say without a doubt that there is a real pattern to how these issues unfold. First, there is a government report like the one that is being released today that outlines a serious pattern of abuses. Second, there are promises made by government and industry to clean house and all sides pledge that it is going to be different. Finally, there is backsliding 6 months or so later and going back to something resembling business as usual. Mr. Chairman, I think it is so important that this time it be different. With your leadership we have that opportunity because I believe that a country that does not get this right, a county that does not protect the most vulnerable people in our nursing homes, is a country that has lost its moral compass and that cannot be tolerated. Now, for just a moment, I want to talk about what I think are the central challenges in front of us as we go forward and put in place a reform package, and I want to note, Mr. Chairman, that I think the legislation that you are looking at--increasing reporting of senior abuse, enforcement of the laws--is absolutely critical and it seems to me any reform effort has to start with those and other patient protections. I would add to it that I would like to see us strengthen the so-called watch lists. There is already an effort underway that I think is totally inadequate to watchdog the most deficient facilities, and I think that watch list ought to be strengthened. Second, the idea that the Federal Government does not require the reporting of instances when there is suspicion of a crime, a brutal crime against a senior, is unacceptable. I know that there are discussions underway to speed notification of that, but I think those at a minimum ought to be part of a package of patient protection. Third, it seems to me we have to continue to ensure that there are the funds necessary to carry out these changes. Perhaps the best measure of the short shrift that seniors in nursing homes get in our society are the inadequate reimbursements in Medicaid facilities, particularly in states like mine, that have held costs down, and that has to change as well. Finally, I would hope that we would also put a focus on building up the advocacy networks of friends and relatives and ombudsmen, because you can pass laws, Mr. Chairman, by the crate full. We can pass one law after another, and if we do not have the friends and the relatives and the ombudsmen mobilized at the grassroots level, if we do not have that army of citizen advocates, all the laws in the world do not ensure that the older people in these facilities get the protections they deserve. Mr. Chairman, it seems to me this time there is a chance to break that pattern, the pattern that you and I have seen on this committee for years and years. It is a pattern of indifference. It goes back to what I have seen since my days as Director of the Gray Panthers, and I am determined to work with you and our colleagues on a bipartisan basis so this time it really is different. Thank you. The Chairman. Thank you very much, Senator Wyden. Next, we will hear from Senator Herb Kohl. Senator Kohl. STATEMENT OF SENATOR HERB KOHL Senator Kohl. Thank you, Mr. Chairman. We appreciate your leadership on this committee, and while we also appreciate your holding this hearing, it is really sad that it is still necessary. Everyone knows, Mr. Chairman, that you have done everything in this committee's power to bring this sad situation to light and to try to change it. This committee has held many, many hearings on problems in nursing homes. We have heard stories of people suffering from severe malnutrition and dehydration and life-threatening bed sores. As we will hear today, in addition to neglect and substandard care, our elderly and disabled also have to worry about being beaten and even sexually abused. Unfortunately, this is not new. Over the past several years, we have continued to hear accounts of abuse and neglect in nursing homes. When we talk about nursing home residents, we're not just talking about nameless faceless people. These are our parents and our grandparents, our aunts and our uncles. They are sick and disabled, and they depend on nursing home staff to protect them and care for them. It is important to emphasize that the vast majority of nursing home employees work hard and do their best to provide the highest quality care. But, as we know, it only takes a few abusive staff to terrorize patients and to unfairly portray the entire nursing home industry in a negative light. As some of you know, I have introduced legislation, co- sponsored by Senators Breaux and Reid, that would take a major step toward addressing this problem. The Patient Abuse Prevention Act would create a national registry of abusive long-term care workers which will prevent abusers from moving from state to state and continuing to find work with vulnerable patients. This legislation would also require an FBI criminal background check to prevent people with serious criminal convictions from working with patients. I am pleased that the American Health Care Association and the American Association of Homes and Services for the Aging, which represent nursing homes and other long-term care providers all across the country, are now strong supporters of this bill. They recognize that background checks will benefit their industry and have worked with my office over the past few years to refine the bill. Their suggestions improved the bill and demonstrate their commitment to protecting their nursing home residents. During the past 5 years, this committee has heard from the HHS Inspector General's Office, the GAO, local prosecutors, state inspectors, and auditors and now the nursing home industry. They all recommend establishing a national background check system. I hope this hearing provides the final boost to pass this legislation. It is past time to act to protect our nation's seniors and disabled patients, and so again I thank you, Mr. Chairman, for co-sponsoring the bill and for once again bringing this important issue to light. The Chairman. Thank you, Senator Kohl. Next we will hear from an outstanding member of our committee, Senator Lincoln, from Arkansas. STATEMENT OF SENATOR BLANCHE LINCOLN Senator Lincoln. Thank you, Mr. Chairman, and thank you for calling this very important hearing today, and to all of our witnesses and panelists that will be here today, we appreciate your concern and your willingness to come before us today and tell some very trying stories. Most of us assume that our elderly and disabled citizens living in nursing homes are safe and cared for properly. While this is very often true, we will be hearing some very shocking stories today of how cruelly some of our most vulnerable citizens have been abused in nursing homes, and as Senator Kohl mentioned, it is disturbing enough just to think that we still require a hearing on this issue. I was surprised to find out about the gaps in security and the lack of coordination between various sectors charged with protecting elderly and disabled people in nursing homes, and I was also concerned to learn that law enforcement agencies often treat crimes in nursing homes differently than crimes committed outside of nursing homes. Some of you all may remember one of our former senators from Arkansas, Senator David Pryor, who also served on this committee. Years ago, Senator Pryor went undercover to work in a nursing home and to reveal some of the difficulties and some of the challenges that we were facing in our nation's nursing homes, and today I am going to be proud to introduce Mark Malcolm, who is our Pulaski County, Arkansas coroner, who has done tremendous amount of work in trying to improve the quality of care in nursing homes as well as point out what some of those difficulties and challenges are. I will talk more about Mr. Malcolm later when I introduce him, but one thing that is very important is that in 1999, Mr. Malcolm helped to introduce legislation in the Arkansas legislature to require that all deaths of nursing home patients be reported to the county coroner for investigation regardless of the cause of death, and it has uncovered a great deal for us in Arkansas to better understand how we can provide greater care for our aging constituents in our communities. With the growing elderly population and a growing likelihood that our parents and even we ourselves will spend some portion of our aging years in a nursing home, ensuring the safety and the quality of care of nursing residents becomes even more important to all of us. I am confident that we can develop solutions to close these gaps and to better protect these vulnerable citizens. So I look forward to the testimony today and I thank you again, Mr. Chairman, for as always bringing about some incredibly important issues to the constituents that we serve. The Chairman. Thank you very much, Senator Lincoln, and thank all the members for their commitment to this committee and the work that we are trying to do and for your involvement. We would like to welcome now our first panel. This is a special panel. It is not easy when you are talking about a mother-in-law or a mother and some very bad things that happen. But I only thank you by also saying the obvious, that your testimony can help future generations from never having to experience some of the problems that your families have experienced, and in that sense, your testimony here is incredibly important for future generations. We would like to introduce Mr. Michael Peters. He is from the State of Florida. He is an attorney for a person who will be known as Ms. Jane Doe, who suffered a rape in a nursing home. We will have Ms. Barbara Becker, who is the daughter-in-law of a person who was attacked by a resident in a nursing home. Our first witness will be Mr. Bruce Love. Mr. Love is the son of Ms. Helen Love, who died after her neck was broken in an incident in a nursing home by an employee of that nursing home. Fortunately, before she passed away, a short time before she passed away, two days, there was a taped deposition of what happened in her own words, which I think is very graphic and very, very helpful, and we would like, Mr. Love, if it would be all right to show that before you give us your statement, and if we could have that interview. It is about 3 minutes. Mr. Love, I know that this could not be very easy for you, but again, as I said earlier, your appearance here today helps to make sure that it never happens again. Mr. Love. That is correct, sir. The Chairman. We would be pleased to hear from you. STATEMENT OF BRUCE LOVE, SON OF PHYSICAL ABUSE VICTIM HELEN LOVE, MILL CREEK, CA Mr. Love. Thank you for having me here, Mr. Chairman, and members of the committee. Obviously, I am Bruce Love, and that was my mother, and you just saw the film clip. I will just tell the story, and this is basically in her own words in the beginning of this deposition. On Thursday evening, July 30, that was when I saw her for the first time lying on a gurney, waiting for treatment after she had been assaulted Tuesday evening at Valley Skilled Nursing Home. My mother's own words are: ``I was in good spirits Tuesday evening, watching TV. I had a bout of diarrhea and had the urge to go. I asked the attendant on duty for Imodium AD pills but got no response. When I leaked some diarrhea into my diaper, I called to be changed. It was sometime later when the attendant showed up and was quite upset that my diaper was dirty, because he had changed me earlier in his shift.'' ``He called me names and was very rough and abusive in changing me. I told him to stop or I would yell for help. He said, `Here is something for you to yell about,' and used an alcohol water swab through my vagina and my raw rectum.'' I would like to add one more thing to the list. I did not know what Class II open sores were. I do now. ``I was on fire and yelled for help. I tried to sit up and grab the right side of the bed rail. He punched me with the flat of his hand, covered my mouth to stop my scream, and chopped me in the back of the neck with his other hand. With his left hand, he dug his fingernails into my wrist to break my grip on the side rail. With his right hand over my mouth, and his left hand squeezing my wrist, he pushed me down into my bed.'' ``I heard a second aide come to the door of my room to see about the commotion. When she saw him choking me, I kicked at my feet to get her attention, but she just laughed and went away. Then I knew no one was going to help me. I could not resist his strength and weight, and I could not breathe with his forcing my head down on to my chest. My deep inner fear told me to stop resisting him or he would kill me. I was afraid of dying this way, so I relaxed and went limp, playing dead. Finally, he let up his grip and stopped pushing me down. I just lay there trying not to breathe too loudly.'' ``Finally he walked toward the door. My roommate Shirley, who had remained quiet during the assault and watched through the curtain, spoke up and said, `I saw what you did to Helen, so you'll have to kill me, too.' My assailant left the room. After a time of silence, I called to Shirley, and she was overjoyed to hear my voice. She thought I was dead. We stayed quiet all night in fear that he would be back. When daylight came, I thanked God I was still alive and I knew something was very wrong with my neck because it hurt terribly.'' ``All my life I have feared being neglected in a nursing home, and now I know what it is like. I was so close to death and somehow survived the attack. I don't want anyone else to suffer like this. Please, son, would you tell someone who can help.'' I am here today to fulfill my mother's request and I mean that. After my father's death, my mother could no longer live by herself and came to live with me and my family first in California and then Nevada. My brother and I both happen to live out here. When I moved back to a remote area of California, my mother moved to Sacramento to live with my brother and his family. In 1998, she was in U.C. Davis Hospital for some health evaluations. She suffered a broken finger when in a hospital bed she was negligently pushed against a steel door frame. The hospital assumed responsibility and moved my mother to Valley Skilled Nursing Home for physical rehabilitation, and that was her only reason to be there was to get this done. Wednesday, January 29, I called the nursing home to speak with the RN to arrange for him to bring my mother up to where I live for a visit. During this call, I was informed that my mother had been roughed up a little bit. He informed me that one of the aides of the previous evening shift had an altercation with my mother and used physical force against her. He told me her sheets had been changed this morning because there were blood stains on them. At that point, he was interrupted. When he came back on the phone, he told me there was an individual there who wished to speak with me, at which time he handed the phone to someone else. I did not know who this person was, and I had to question him to find out that he was the Administrator of Valley Skilled Nursing Home. He told me that the problem was taken care of and that the employee would no longer be tending my mother. In addition, the administrator told me that the Department of Health Services had been notified. He also told me that the nursing home doctor would evaluate my mother for possible injuries, and if any were found, she would be taken across the street to U.C. Davis Medical Center. This ended our conversation. I was very upset, so I immediately telephoned my brother and I could not reach him at work. Then I called a friend who was a local deputy sheriff. He advised me to speak with his sergeant and also the district attorney's office in the county that I live in. Both officers advised me to get my mother away from the nursing home and to a hospital as soon as possible. They also suggested that I have a family member transport my mother to ensure that she would be cared for in a humane and loving manner. I was finally able to reach my brother at home about 4 p.m. He immediately went to the nursing home to see our mother and called me from there. He was alarmed at my mother's condition. Her neck was very sore and painful. She had bruises on her chin and chest and lacerations on her right wrist. She told Gary that she had been hit very hard on her chin and on the back of her neck. My brother telephoned our mother's personal physician and recommended Gary take our mother to the hospital as soon as possible. Gary had to go home and get my mother's wheelchair because he was not receiving any cooperation from the nursing home in moving her to the hospital. When he returned, my brother was told by the nursing home's evening shift supervisor he could not take my mother out of the nursing home, at which time he called me for help. I spoke with his supervisor and informed him that we indeed were taking my mother to the hospital regardless of his protests. Ironically we were informed by the nursing home official that it was not medically advisable to move our mother to the hospital. My brother had to use force to overcome the protest of the nursing home to get my mother out of the nursing home. This took an additional hour. During this time, my brother called the Sacramento Police Department and explained what happened. They sent an officer to Valley Skilled Nursing Center, and they also sent a photographer to the hospital to be there when my mother arrived. After extensive evaluation at the hospital, it was determined that my mother had indeed suffered grave injuries to her neck, and in fact her neck was broken. Vertebra 3, 4 and 5 were displaced leaving my mother's head hanging to the side. She was unable to hold up her head. In the hospital's attempted emergency surgery--I want to clarify one point. She was given anesthesia to see if she could tolerate this and she expired. However, due to my mother's health condition and sensitivity to anesthesia, she expired on the table and had to be revived. The only remaining treatment for this injury was the installation of a halo, which had to be screwed into my mother's skull with metal bolts and rigidly attached to her upper torso. In addition, a soft cast had to be applied to her right arm where the offender had grasped her wrist so hard that it was cracked. My mother lived in great pain and severe restriction of movement for the rest of her life, which was less than 60 days. She died on September 24, 1998, 2 days after this deposition tape that you saw, and she had requested removal of the halo due to severe pain just prior to expiration. Prior to my mother's death, the offender had pleaded not guilty to the charge of assault and elder abuse. After my mother's death, he immediately changed his plea to guilty of elder abuse in order to avoid the manslaughter charges. If I could add another point where I was very frustrated with this was his people beat us to the district attorney's office and they had a plea bargain before we could even get the rest of our information there. So the district attorney's office did not help us. He spent one year in the Sacramento County Jail. As for Valley Skilled Nursing Center, they hired this individual to care for the elderly; they failed to perform an adequate background check before hiring this person. After investigation, my attorney learned that he had been dismissed from two prior nursing home positions for aggressive behavior toward residents. The nursing home also failed to recognize the extent of my mother's injuries and to take her to the hospital immediately. If my brother and I had not stepped in and intervened, my mother might never have received any medical attention for the broken neck and broken wrist after being assaulted by this employee. Moreover, this man might still be caring for the elderly today. Since the focus of this hearing is to hear about the response of law enforcement and other agencies to the physical and sexual abuse in nursing homes, I would like to share my experiences in this regard. We got no assistance from the social services agencies that we contacted. The ombudsman who was very good to us had no authority to do more than conduct a cursory interview and write up his observations. A state agency surveyor in the building where my mother's neck was broken was there to investigate another spot or another matter. No one from that nursing home reported to her, and she was in the very next morning while my mother was still there. Prosecutors did their best to prosecute the assailant, but much of the information was provided by our attorney. That is where the initiative came from to go after this guy was through my attorney's office. Finally, the judge seemed unsure about the trial and what to do with the nursing home aides who abuse the elderly. After prompting from the attorneys, the assailant's license was revoked, and he was ordered not to have contact with the elderly in future work. However, in spite of his actions that contributed to my mother's death or the charge of elder abuse, he only spent 6 months of a total of a year in the county jail. There are no words to describe how devastating his experience is to me and my family. We entrusted my mother's care to institutions that failed us in every respect. My only hope is that somehow telling my mother's story, I can prevent this from happening to anyone else's mother in the future. I urge this committee to take action to ensure our senior citizens are protected at home, and after hearing what you had to say, I thank you, I thank you very much for your commitment to do this. Thank you for inviting me here today. [The prepared statement of Mr. Love follows:] [GRAPHIC] [TIFF OMITTED] T8785.001 [GRAPHIC] [TIFF OMITTED] T8785.002 [GRAPHIC] [TIFF OMITTED] T8785.003 The Chairman. Mr. Love, thank you so very much for what I know has been a very difficult time that you have been through. We certainly apologize for you having to go through it, but your statement here today is extremely important, and we thank you for being with us. Next, we will hear from Ms. Barbara Becker. Ms. Becker. STATEMENT OF BARBARA BECKER, DAUGHTER-IN-LAW OF PHYSICAL ABUSE VICTIM HELEN STRAUKAMP, EVANSVILLE, IN Ms. Becker. Mr. Chairman, members of the committee, thank you very much for allowing me to represent my mother-in-law Helen Straukamp, a homicide victim. According to the facility, Helen had been injured. The hospital was informed that she suffered a fall, but an employee later told us of the actual assault. An eyewitness reported that Helen was picked up by the arms from a standing position, lifted off the floor and slammed into a wall and handrail, falling to the floor unconscious. Helen was never even able to stand again and died 22 days later. The coroner ruled her death a homicide. The picture on the left is the way she was prior to the assault. I discovered on my own in Louisville that the perpetrator of this assault was a male mental patient with a decades long violent history, which included four shootings, SWAT teams, prison time, et cetera. None of this was ever mentioned in the investigations. I found documents signed by the nursing home showing that they knew of his history. After the assault on Helen, this resident was soon given his usual access to the entire population of the facility. He threatened to castrate a wheelchair-bound resident while a surveyor was in the facility. He attempted to assault yet another elderly female resident, and the administration of the facility did nothing. I notified a detective and the prosecutor's office. A judge issued an order for an involuntary removal to a psychiatric unit where he had to be placed in total lockdown and charged with involuntary manslaughter pending a competency hearing. My experiences with regulatory agencies, law enforcement, et cetera, are as follows: Due to my dogged determination for accountability, I contacted elected representatives including the Governor, the State and U.S. attorneys, HCFA, HHS, and the GAO. It required four investigations to reveal 42 pages covering 6 years of previously undiscovered violations from the date of this man's admission. No immediate jeopardy level was imposed due to Helen's death. HCFA overrode the state's flat fine, and imposed a $1,000 per day fine, but the scope and severity level remained unchanged. Still out of compliance on a revisit, the civil money penalty continued and total fines amounted to $60,800. But by not appealing, they were granted an automatic 35 percent discount on the Federal fine regardless of a homicide. To this day, the facility's record on the CMS web site appears very favorable. The entire experience with the state regulatory agency was adversarial from the very first meeting. There was absolutely no doubt to me who was being protected and it was not the residents. In my first meeting with the department of health official I was personally told, ``Well, this was not like a beating.'' You can tell for yourself. The former assistant commissioner of the Department of Health refused to discuss the case with me. Law enforcement investigated but only the perpetrator. I contacted Adult Protective Services three times, only to be told that they do not handle nursing home cases. They are actually barred from investigating nursing home cases in my state without orders from the Department of Health. Department of Health rarely uses this resource. I contacted our Peer Review Organization, and received only a letter and a brochure declining to even investigate. The Medicaid Fraud Unit completed a very thorough investigation and validated every piece of evidence that I had provided. I pushed the completed case through the AG's office, who took no action, and on to my local prosecutors. They declined to investigate or prosecute. There has yet to be any justice for a homicide. All I hear from the industry are labels of ``isolated incidents,'' which must by now number in the hundreds of thousands. Frivolous lawsuits, no matter how horrific the case. I hear whining for more money, less regulation, and what I refer to as tort ``de-form.'' The system leaves no alternatives for victims. I could have provided reams of evidence today until I realized that countless victims and family members like me have stood here before you evidence in hand. Countless congressional reports, GAO reports and studies have been presented to Congress for years, as you know. The evidence is already in. Those with the power to stop these atrocities no exactly what is happening. You have seen thousands of certificates of unnatural deaths, thousands of pictures of the bodies of victims of our system. At least 15 of the 25 largest chains have been accused, found guilty, or have admitted to Medicare fraud of multi- millions. To my knowledge, not one owner or operator has gone to prison. They are not even required to pay back all the defrauded funds. Negligent homicide and elder abuse within my home or the community is treated as criminal, not so inside a nursing home. It is just a regulatory offense with no criminal accountability. I am from a long line of patriots and veterans from World War I through Desert Storm, yet veterans referred to as the ``greatest generation'' are enduring these same nursing home atrocities and treated as those least deserving of our country's respect. Yet, there is considerable concern for the Afghan detainees in Cuba, and it is a felony to euthanize a mockingbird in Washington. Helen's homicide was included in Congressman Waxman's report to Congress July 30, 2001 on reported abuse in one-third of our nursing homes and has received nationwide media attention. It is long past time to restore the civil and constitutional rights of nursing home residents. Thousands are waiting to hear the results of today's hearings. They would like to know when we will have justice, and with all due respect, what will I be able to tell everyone across the country when I go home? Thank you. [The prepared statement of Ms. Becker follows:] [GRAPHIC] [TIFF OMITTED] T8785.004 [GRAPHIC] [TIFF OMITTED] T8785.005 [GRAPHIC] [TIFF OMITTED] T8785.006 [GRAPHIC] [TIFF OMITTED] T8785.007 The Chairman. Ms. Becker, thank you very much for your contribution as well. I know also that it is not easy to talk about these matters, but it is incredibly important that we receive the information, and we thank you for doing so. So, Michael Peters. STATEMENT OF MICHAEL PETERS, ESQ., COUNSEL FOR RAPE VICTIM JANE DOE, ORLANDO, FL Mr. Peters. Thank you, chairman. Thank you for inviting me here today. I am a trial lawyer in Orlando, FL. I have made this trip today because this, indeed, is an important issue that your committee has chosen to address. I am here today because I believe our national treasure, our elderly population, is at risk on a daily basis in nursing homes across the country. I salute Mr. Love and Mrs. Becker. I am humbled in their presence, because although I have heard many tales of horror such as theirs in the course of my work, I have never experienced it firsthand. I can only imagine the pain that their family has gone through, and I salute them for being here today to relive that before this committee, hoping that something will be done. The past 4 years of my law practice have been devoted exclusively to the representation of nursing home victims, victims of abuse and neglect. I have seen things I never thought imaginable. I have a case where a man in Tennessee was completely helpless lying in bed, and a certified nursing assistant crawled up on top of him and beat him repeatedly about the head, and he ultimately was sent to the hospital and died from these blows. A woman in Florida, 90-year-old woman, helpless again, lying in bed, and was beaten in the head with an aluminum can because she dribbled some of the formula in the can out of her mouth. She too died. I have seen bed sores the size of footballs where you can see all the way down to a person's bone, but nothing that I have come across is more shocking than the case, the facts of the case that I came here today to tell you about, and that is a case where a 36-year-old woman who had suffered a massive stroke. As a result of this stroke, she was completely paralyzed on the left side of her body, she was not only physically disabled, but significantly mentally disabled as a result of the brain injury from this stroke. After hospitalization, she was sent to a nursing home because she could not care for herself. She needed 24-hour skilled nursing care, and she would probably for the rest of her life. All of the things that we take for granted, she had to have somebody do for her. Get out of bed in the morning, brush your teeth, comb your hair, dress yourself, she needed assistance eating. If she needed to go to the bathroom, she needed assistance. Everything, like I said, that you and I take for granted, she had to have help with, and she was there for 2\1/ 2\ years, and this was being done. As you can imagine over that period of time, she developed a level of trust and confidence in those people that saw her in a very intimate way every single day of her life. That trust and confidence was shattered sometime in April of 2000. Sadly, my client did not even know that that trust and confidence had been shattered. It was not until January 13, late at night, that she began to have excruciating stomach pains. The fact of the matter is she was in labor. On January 14, in the wee hours of the morning, a nursing assistant came in to change her diaper, her adult diaper, only to find a baby lying in feces in her diaper with the umbilical cord still attached. You see my client had been raped. She had no knowledge of this incident. She had no knowledge that she was even pregnant. She carried this baby full term, 9 to 10 months, and nobody from the nursing home ever figured it out, the people that were bathing her everyday, that saw her naked, they did not figure it out. It was not until they came in and found the baby lying there. She delivered that baby in that room by herself in the dark feeling excruciating pain with no anesthesia, with no medical help, with nobody. The nursing home did not call the authorities. They did send her out to the hospital or she was sent out to the hospital, and miraculously that baby lived. The baby is alive today and is being raised by her cousin in Orlando, FL. I can only say that I spent an hour sitting in my office when this case came into my office, trying to figure out how something like this could have happened. I have yet to figure that out. There are many questions that have been raised by this situation, and none of those questions in my mind have been answered yet. But I promise you that I am going to find out the answers if I can. The good news is that in this particular case, local law enforcement was able through DNA match to identify a suspect, make an arrest. That person has been arraigned and will stand trial in Orlando, FL for this heinous crime. I certainly would like to answer any questions that this Senate committee has regarding this issue. I think that in other cases, the case in Tennessee where the man was beaten to death, there was not a good response by law enforcement. They never did make an arrest. From what I can tell from the paperwork, they never made any reasonable investigation of the matter. The state agencies and local agencies likewise chose to slide this under the rug, and they still have not identified the man that beat him to death. I think there is a very important issue here, and I appreciate your devotion, the commitment that you have made to address the issue. Thank you. The Chairman. Thank you, Mr. Peters, and thank you, Mr. Love, and Ms. Becker, for your presentations. You know that in the almost 30 years I have been in Congress, this is probably the most disturbing testimony that I have ever experienced on any committee either in the House or in the Senate. You know we have special laws that protect crimes against juveniles and children in this country, as we should, because they are a vulnerable population, but certainly seniors, particularly in institutions of care, nursing homes and what have you, are also particularly vulnerable and maybe even more so than a child, because they are outside of a family setting, many times without seeing any relatives or loved ones over a relatively long period of time. So, while it is important that we give that attention to juveniles, it is equally important, if not more so, to make sure that we give that same degree of attention to problems when crimes are committed against seniors. I mean it just goes without saying that for every crime, there is a criminal somewhere. What you are telling this committee, I think, is that law enforcement is not really involved sufficiently to take care of that. While it is tragic that these things happen, it is equally as tragic if nothing is ever done about it, because that would only allow it to occur again in the future. Mr. Love, your testimony about your mother is just very important and very difficult to give. How did you find out about what happened? How did you first learn that your mother had had her neck broken? Mr. Love. I saw my mother---- The Chairman. Get close to that mike, please. Mr. Love. Excuse me. On Thursday when I went down to see my mother, I found out this through the evaluation of the hospital emergency room. The very next morning, I went over to Valley Skilled, and what was ironic was her charts were still being filled out that Helen was awake, spontaneous, and she had left the facility Wednesday night. The Chairman. How many days was it from the time it happened? Mr. Love. This was 2 days later. Her charts were still being filled out on a Friday that she was, you know, alive, you know, was responsive, that kind of stuff, and my mother had been removed Wednesday night. The Chairman. Did anybody from the facility call the family to tell them that something bad had happened? Mr. Love. Until I had called, she was, like I said, beaten on a Tuesday night, this was Wednesday morning--I was only advised from the shift supervisor--not the shift supervisor-- the RN that was taking charge of what had happened to my mother. Otherwise, there was no call the night before, and---- The Chairman. Who was the first to call the law enforcement officials? Was it the nursing home? Mr. Love. No, they did nothing. My brother took the initiative to call the nursing home--not--excuse me--the nursing home--called Sacramento Police Department to make sure there was an officer that would help him respond to, you know, ease and facilitate getting my mother, you know, over to the emergency room, and the law enforcement responded with also a photographer, who came in the middle of the night and took the police photographs to substantiate what her injuries were. The Chairman. Did the nursing home ever call law enforcement? Mr. Love. No. The Chairman. What you also say, in effect, is that the nursing home really hired a criminal? Mr. Love. That is what I understood. Our attorney did some investigative work into this gentleman's background, and it was not a very good background. The Chairman. The person who did this to your mother had actually been dismissed from two prior nursing homes for aggressive behavior toward residents. Mr. Love. Yes, and my attorney has more detail, but that kept it brief so we could portray this. The Chairman. You mentioned that there was a survey, a state agency surveyor, in the building when your mother's neck was broken. Can you elaborate on what, not who it was by name, but what was that person's position? Was he a state official in the nursing home of some sort? Mr. Love. She was from Health and Human Services and this is for the Aging, and they also take care of the same--the ombudsmen turn their reports into these people, and this lady was in Wednesday morning on another incident, but was never notified while she walked right down the hallway past my mother's bed, but was never notified that there was an incident at all as of Wednesday morning, and the lady was there, and I had talked with that woman. The Chairman. So you have a situation here where the nursing home personnel, which knew about what happened, neither notified law enforcement nor did they notify the state agency that regulates nursing homes? Mr. Love. That is correct. Also no other evaluation was done on her by anyone outside of the nursing home, so that led us to believe we were very fortunate to discover my mother's injuries at that particular time, because I do not know if she would have ever received anything, since the only people that had looked at her at all were internal. With my mother's neck broken, one of her complaints was they tried to have her doing range of motion movement to see if she could function and what was going on, and everyone I have ever talked to said with a severe neck injury, you would never do something like that, and the person that did this was the director of nursing. The Chairman. You certainly do not do that with a broken neck. Mr. Love. I would not think so, sir. The Chairman. Ms. Becker, again, thank you for what I know is difficult, but I also want to assure you that these hearings will not be forgotten after you leave. You said that the facility had said that your mother-in-law had been injured in a fall. Is that how they characterize what had happened to her? Ms. Becker. What they left on our answering machine was just simply that she had been injured. The documents that they sent with her to the hospital indicated that she fell. The Chairman. So the family was notified how? By a call left on an answering machine from the nursing home? Ms. Becker. Yes. The Chairman. They indicated that your mother-in-law had been injured. Ms. Becker. Injured. The Chairman. But did not elaborate how? Ms. Becker. No. The Chairman. What did you do after that? Did you call the nursing home and say what do you mean, how is she, or did you call and find out more about it, and what did they say? Ms. Becker. Initially I called. She had fallen before, so I assumed injured, she had fallen. We called to find out whether she was still at the nursing home or at the hospital, and she was already back at the nursing home because the hospital was not told. So we went directly there as soon as we made contact with them, but there was no mention of the assault until an employee came forward in secrecy and---- The Chairman. How long after the incident happened did you find out what really happened, the fact that your mother-in-law had been picked up from a standing position, slammed into a wall and a handrail, and fallen unconscious. How long after it happened did you actually find out what really happened? Ms. Becker. We had been gone for the day. I would say we had been at the nursing home for maybe 45 minutes when this person came forward. The Chairman. Do you know if the nursing home ever called law enforcement after it happened? Ms. Becker. No, sir, they did not. The Chairman. Do you have any knowledge as to whether they reported what actually happened to the state authorities that regulate the nursing home? Ms. Becker. I do not think so. I reported it. The Chairman. You yourself had called the state and all these other agencies that you called as well? Ms. Becker. Law enforcement, yes. The Chairman. You said that you did not get much help from the regulatory agencies at all? Ms. Becker. Right. The Chairman. How about from law enforcement? Ms. Becker. They did a very good job up to the point of investigating this male mental patient, but once he passed away, there was nothing further done. The Chairman. Do you think that from your knowledge, had the nursing home done a background check on employee--this was a mental patient in there? Ms. Becker. Resident, yes. The Chairman. I am sorry. That is for Michael. The person that did this to your mother-in-law was actually a patient in the facility? Ms. Becker. Correct. The Chairman. Right. But that patient had a long history of rather violent mental problems? Ms. Becker. Yes. The Chairman. Mr. Peters, another absolutely horrifying story. I mean it is just almost unimaginable. On your situation, did the nursing home call law enforcement? Mr. Peters. Not to my knowledge, chairman. Like I said, she was sent to the hospital pretty soon after that, but I have not been able to see anywhere in the records so far that the nursing home called the family. The family ended up finding out when the hospital called. The Chairman. So the family found out not from the nursing home where it happened, but actually from the hospital where she was admitted after the baby was discovered, I take it? Mr. Peters. That is what I understand so far. The Chairman. When was the family first involved with law enforcement officials about what happened? Mr. Peters. It was within a couple of weeks. The Chairman. A couple of weeks? Mr. Peters. A couple of weeks within her being admitted to the hospital. The Chairman. But obviously the situation here is even more separated from the time of the actual crime, which was the rape, and not being discovered until the lady had the actual baby in the nursing home 9 months later. Mr. Peters. That is correct. The Chairman. Tell me about the employee who perpetrated the crime. I mean this was a criminal. Was there any reason to suspect that this person had any kind of tendencies in his past record to be involved in this type of activity? Mr. Peters. None that I can find so far, but the case in terms of the civil case is still ongoing, and for that reason I cannot speak a whole lot, but I can say that I will be doing discovery on that very issue. I do know that he was a 9-year employee of the nursing home. What I do not know is what his actions were during that 9 year period. I have not gotten his records. The Chairman. Can you tell us how and who found out who was responsible? Mr. Peters. Yes. There was an anonymous call from a woman who evidently worked at the nursing home, but she never identified herself. She called the police officers. The Chairman. I take it that the evidence indicated either through DNA or some other manner of gathering evidence that this person was, in fact, responsible? Mr. Peters. Yeah. What was bothersome to me is getting into this the nursing home originally tried to say that my client had been taken out of the facility during the time that she would have become pregnant. Well, the records show that is clearly not the case and a couple of witnesses came forward to try to trump up a story to that effect, and it has all been disproved. Believe it or not, this man originally claimed that this was a consensual sexual relationship, and that is why--and he voluntarily gave his DNA, and then they matched up, and, of course, anybody that spends 2 minutes with my client knows that the notion that this was consensual is absurd. The Chairman. Can you tell--my last question--can you tell us how the law enforcement officials got involved in this case? I know there is civil litigation going on, but from a law enforcement standpoint, how did they become involved in this case? Mr. Peters. They were called likewise by the hospital, because what I have found in these---- The Chairman. Not by the nursing home? Mr. Peters. Not by the nursing home. What I was going to say what I found in these cases is that when a hospital gets a patient that has obviously been the victim of some kind of incident in the nursing home, they are pretty quick to get on the phone and call the police because they do not want any of that responsibility falling into their lap. The Chairman. Thank you, Mr. Peters, and thank all of you for very powerful testimony. Senator Wyden. Senator Wyden. Thank you, Mr. Chairman. Your excellent questioning highlights, it seems to me, how the safety net that is supposed to protect vulnerable seniors is just full of holes. Mr. Love, I was particularly struck by the last page of your testimony--basically the entire system broke down--the social service agencies, the ombudsman did not have the necessary authority, the state surveyors, the prosecutors, the judge. I mean at every step of the way the system that is supposed to be there for seniors as a safety net, there was not any there. What I would like to do for just a couple of moments is have you trade places with all of us who are sitting on this side of the dias. We want to make sure that we do not have witnesses here in another 18 months saying exactly the same thing. I think, Ms. Becker, you put it very well. The question is what do we say when we go home? What do we say about it being different? The question will be what is it like in 2 years when the press has gone away and some of the attention is not there? Will we have exactly the same system that exploits and rips these people off? So what I would like to do for a few minutes is just have each of you put yourself in our shoes. We want to make it different this time. Give us a couple of priorities. Each one of you, start with you, Mr. Love, then you Ms. Becker, and then you, Mr. Peters. You have got the election certificate today and tell the U.S. Senate what you think ought to be done. Mr. Love. Mr. Love. It is ironic. I tried to do something like this to help you along with just some ideas. A few of the recommendations are--when you were leading into when we started this, someone said this, like put a face on the problem. You are not going to forget it, and I am just going to use Polly Klaus' father keeps things alive, keeps things stirred, and when you do this, the interest is there. I do not know of too many people that do not know the Polly Klaus story. From my situation, the other part was I feel some of the laws are there, and all they have to do is enforce them. But they have to take that initiative. I have no complaint with the Sacramento PD, so if I was listening to this--they did what they could, but the detective told me once it is turned over to the DA, I cannot do anymore. There is one thing I am going to try and say with this in some way or another, we have to with some aid promote Health and Human Services enforcement, but get them free of limitations by supervisory pressure not to go after offenders. I cannot say too much specifically on sources, but we had an individual come to us and say that she was too efficient and she needed to tone it down, and if she did not do that, it was going to cost her her job. Senator Wyden. What level of involvement did this come from? Was this a governmental person? Mr. Love. This was a governmental person, and like I said-- -- Senator Wyden. Somebody in government said you are doing too much to protect seniors? Mr. Love. This was a supervisory level, you know, and this woman did not like it, she would not have a position, and she had to say that off the record for keeping her job. The other thing is I know a little bit about, you know, the IRS and a few other things, but in the IRS, if you are in a corporation, and you are one of the officers, and shall we say money is lost, and you are an executive in that position, they can go after you personally to make sure that the government is reimbursed for what should have been paid in the first place. So one of the things I would consider is can you hold owners or managers of a corporation criminally responsible? All I am saying is my experience has been there has been a number of cases that I have had a chance to see or know about where the people are fined, the insurance companies pay the fine, and business goes on as usual. Senator Wyden. Is business going on as usual at the facility where your mom was? Mr. Love. I cannot speak recently on that. But what I am saying is there were other litigations that came in after our case and that was going to be substantially damaging to them, and the insurance company no longer wanted to insure them. They had lost their insurance after our case is what my understanding was. The biggest thing what I am saying was is if someone would be held criminally responsible, and I will use the terms that I have written right here, for continued abuse in the conduct of the operations of a nursing home, and there is no corrective measures, are we to believe that there is no consequences for, shall we say, continuing bad business when--all I am saying if I was a member of a corporation, and my corporation did not pay it, if I am the one that has got the assets, they could go after me and take them back. I just wonder whether something along that line. I will make one last statement, and I will be brief. After contacting my attorney to make sure I was correct with this, collect the fines and penalties assessed by the state agencies for nursing home violations. In California, this would help you get the needed funds for enforcement, and the money just is not gone after or it is appealed and appealed and appealed and reduced quite substantially. But with her passing on to me the knowledge that there is millions of dollars that have not been gone after to be collected that have been assessed for Class A, which is the most serious violations, I do not know what to say. They had been fined. Nothing is being done. Senator Wyden. Good recommendations. Ms. Becker. Ms. Becker. I believe I said something like that in my testimony. We have regulations, probably more than we need. They are not worth the paper they are written on if they are not enforced. To me the biggest insult of the whole experience has been that had this happened in my home, there is no question I would have been investigated, I would have been prosecuted, and I probably would have been put in prison. That is why I cannot let it go. I think that would change a tremendous amount of things down the ladder. Senator Wyden. Sends a powerful message. Mr. Peters. Mr. Peters. Yes. The first thing I would do, and I am certainly no expert on what can be done on the Federal level versus the state level, but I would suggest having Federal imposed regulations in law across the board for nursing homes in the United States that require mandatory criminal background checks, mandatory investigation into their background for whatever facilities they worked at previous, because the nature of the nursing home business is people move around a lot, and they get lost in the shuffle. They need to have their background investigated going back probably, you know, 5 to 10 years. Then I would impose Federal, stiff Federal penalties, when nursing homes have cases of unreported abuse or it is discovered after the fact that there was abuse and they knew about it and they did not do anything about it. Then if you can discover that they violated these Federal regulations on hiring, the penalties need to be stiff and maybe include license revocation. The third thing I want to talk about real briefly, if I can, has nothing to do with we are talking about the response. I think one of the big things in looking at nursing home care going forward in this country is prevention, and again I do not know if this can be done on a Federal level, but security cameras in rooms, affectionately known as ``granny cams,'' if the residents and their families want them, they can agree to it, you can put them in there, and I am telling you people do not do things when they know the camera is watching. It may not eliminate all the bad apples that get in, but it will certainly limit the bad behavior. Senator Wyden. Mr. Chairman, my time is up, but I think because you and I are on the committee involved in communications issues, that is an area we ought to follow up with Mr. Peters on, because he has, in effect, said let us look at a tool that would empower the patients and families. In other words, you are not forcing it on them. You are saying let us look at something that empowers them to have this added tier of protection. Senator Breaux and I are both on the committee that deals with these issues, and we will have the chance to follow that up as well. Thank you, Mr. Chairman. The Chairman. Well, we got cameras catching people running red lights, for God's sakes. I mean you think if you can use cameras with something as insignificant as that, something like this is something that should be considered. Senator Kohl. Senator Kohl. Thank you very much, Mr. Chairman, and I would like to say I can guarantee that your coming here and testifying is not going to be in vain, and if I guaranteed that, I am sure you would look at it with some degree of question, but I do believe that this hearing is going to result in improvement in the kind of care and the kind of oversight that we give to our elderly who are in nursing homes. Just to talk about this bill that we have been trying to get passed now for 5 years, this national registry of abusive long-term caregivers, the bill also would require that the FBI conduct criminal background checks to see if there are any serious violations in the history of a potential employee, of a health care facility, which I think you indicated, Mr. Love, was on the record of the abuser of your family member. There was a record of a criminal violation. Mr. Love. That is correct, Senator. My attorney was dogged enough to go back and find, you know, what had happened with this previous individual. We were not given that information. My attorney found out. Senator Kohl. Would the three of you be at least minimally satisfied if we could pass that bill? That is to say establish a national registry of those people who have abusive backgrounds, and also require that the FBI conduct a criminal background check on any people who apply for employment? Ms. Becker. Ms. Becker. May I ask a question? Senator Kohl. Yes. Ms. Becker. Would it be mandatory that if a facility just does not report, say they have an employee who abuses one of their residents, and if they do not report that and let that person move from place to place, which happens a lot, would there be stiff penalties for doing so? Senator Kohl. So you are suggesting we add that provision to the bill? Ms. Becker. Yes, sir. Senator Kohl. OK. Mr. Love. They found out in California that you are supposed to turn in any violations, so the nursing home is supposed to do that. What they found is instead of turning in the paperwork, there is a habit of, shall we say, you go down the road and we will keep our mouth shut, get lost. That is why homework had to do be done in reverse to find out what this individual was about. Senator Kohl. Just to get at this question about reporting it, presumably the reason that a facility would not report it is because it would reflect badly on them? Mr. Love. That is correct. Senator Kohl. But if, in fact, there was no public declaration other than this person is listed as an abuser, then the facility would have no compunction about reporting that person as an abuser to be listed on a registry; right? Mr. Love. I would agree with that. That was the reason in California, again, the background checks are supposed to be performed to put the responsibility on the new hiring agency, and shall we say some are not diligent in that aspect? Mr. Peters. Senator Kohl, I think the national registry idea would be a great starting place, which would allow nursing homes to, in fact, investigate their employees on a nationwide level. Therefore, if you have a CNA, a certified nursing assistant, that has worked in Arizona, and had problems and moved to Florida to work, it would be required by the new nursing home to check the national registry. If that person is on it, they would be precluded from hiring that person. You are going to eliminate some of the bad apples. I think it is a real good place to start. Senator Kohl. OK. Well, as I said, we cannot guarantee that we can get this bill passed, but we have been trying for 5 years to get it passed, but I believe our chances are better than they have ever been before, and I believe your presence here today, your testimony, the record that you are establishing, will have a lot to do with providing the impetus to get the bill passed, and I think it is going to be done. So we all appreciate your coming. The Chairman. Thank you, Senator Kohl. I would just make an observation. Back in 1998, Congress passed an appropriations bill that allowed the states in that legislation to request FBI criminal background checks for nursing home employees. It is cheap, relatively simple. FBI does the work, gives you a report. I think there are probably only two states that availed themselves of that opportunity now. They can do it right now. The FBI will do the work for them, but they are not doing it. Senator Lincoln. Senator Lincoln. Thank you, Mr. Chairman, and once again thanks for your leadership in this issue on behalf of our seniors, but also on behalf of aging Americans. When I was a staffer here in Washington before I was elected, I can remember calling home to my mother, and she did not have time to talk to me on the phone because she was going over to the elementary school. She was a room mother, and I made the comment to her, I said I am the youngest of your four children, you have not had a child in the public schools in almost 25 years now, and I said why are you going over? She said because those kids need a room mother, they need a valentine cookie, they need a bean bag toss at Halloween, and in jest she said, she said I want those children to grow up as well adjusted as possible. She said you never know. They may be the ones running the nursing home you put me in one day. So it is not just these atrocities and these tragic stories that you have shared with us today, but it is the fear in our aging population of what they may be subjected to, because of the stories you have shared with us. I do not have any questions for you. I just want to tell you how grateful I am that you were willing to bring these stories to light, to bring these stories to us, in hopes that we can work with those in states who have gone a little bit further, who have pushed the envelope. There are some things in our State in Arkansas where we have seen some terrible things happen, and we have worked with our coroner, who will be testifying in the next panel, but certainly so many things that we could be doing, and hopefully in conjunction with Senator Kohl and Senator Breaux and Senator Wyden and myself, we can continue to bring to light to our colleagues and move forward in some areas, particularly in legislation. It will be of great assistance, not only to ensure that the tragic stories you have told us today do not occur again, but that we can help to eliminate any fear of those aging constituents out there who are fearful of where they might be themselves one day. So thank you very much for coming. Thank you, Mr. Chairman. The Chairman. Thank you, Senator Lincoln. I want to thank the panel again. This is obviously very powerful testimony, and shame on us if we do not follow up and get something done as a result of it. I assure you that we intend to and intend to do it aggressively, and this panel would be excused, and hope to continue to work with you. I would also note for the record, I mean I think the testimony we have heard is not typical of nursing homes in this country. I mean the fact that it ever happens is one incident too many. The Chairman. Let us welcome up the second panel. Ms. Leslie Aronovitz with the General Accounting Office who did the report for us; Mr. Mark Malcolm who is the coroner from Little Rock, who maybe Senator Lincoln will say something about; Ms. Delta Holloway, who is with the American Health Care Association, representing the nursing home industry; Mr. Henry Blanco, the National Association of Adult Protective Service Administrators; and from my home State of Louisiana, Sheriff Charlie Fuselier, on behalf of the National Sheriffs' Association. I told everyone that for Sheriff Fuselier, as he testifies, I will engage in simultaneous translation so that everybody can understand us. [Laughter.] But Charlie, we are very happy that you are here with us. Let us take Ms. Aronovitz, again with the General Accounting Office, to give us her testimony from GAO. Thank her very much for what has been a very long effort on the part of GAO in looking at this issue, and on abuse in nursing homes, and I think they did a terrific job. Ms. Aronovitz. STATEMENT OF LESLIE ARONOVITZ, DIRECTOR, HEALTH FINANCING AND PUBLIC HEALTH ISSUES, HEALTH EDUCATION AND HUMAN SERVICES DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON, DC Ms. Aronovitz. Thank you, Chairman Breaux, and committee members. I am deeply saddened but unfortunately not shocked by the testimony we have heard on the first panel. The fact is we cannot overstate the vulnerability of nursing home residents who are physically and mentally abused and impaired. The Federal and state oversight agencies and the nursing homes themselves are fully aware of the heightened risk these fragile residents face. In fact, these entities have policies and procedures in place intended to protect residents from abuse. Nevertheless, our work in three states confirms that significant gaps in these protections leave residents at considerable risk. I say this fully acknowledging that even the best of safeguards cannot prevent every incident of abuse. The ambiguous and hidden nature of abuse in nursing homes makes the prevalence of this offense difficult to determine. For reasons such as fear of recrimination of adverse publicity, as was mentioned, we found that family members, nursing home staff and even management do not always report allegations of abuse timely enough for it to be fully investigated or at all. We were also concerned that some states do not interpret and apply the definition of abuse in the way that the Centers for Medicare and Medicaid Service's officials believe that the definition should be applied. In Federal nursing home regulations, CMS defines abuse as the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish. The states we visited maintain their own definitions that are consistent with this one, but their application of the definition varies. For example, Georgia survey agency officials were less likely to determine that an aide had been abusive if the aide's behavior appeared to be spontaneous or the result of a reflex response. Pennsylvania officials were not likely to cite an aide for abuse unless the aide caused the resident serious injury or obvious pain. So, for example, of someone took a hairbrush and struck the back of a resident's head and no injury appeared, they might be less likely to decide that that was, in fact, abuse. The Illinois survey agency considered any nonaccidental injury to be abuse and cited aides even when residents were combative or had not suffered serious injury. In discussing the states' different approaches, CMS officials contended that an aide who slaps a resident, regardless of whether it was a reflexive response, should be considered abusive. In light of these different perspectives, we have recommended that CMS clarify the definition of abuse to ensure that states cite abuse consistently and appropriately. Another problem we identified consistent with the testimony you just heard is that existing protections are not adequate to keep a person with a history of abuse from getting a job in a nursing home. For instance, when hiring nurse aides who are the primary caregivers in nursing homes, facilities are required to check a state registry for information on these perspective employees. However, the registry is limited to information about an aide's employment in nursing homes within the state. Even when an aide has been cited for abuse within the state, there may be a considerable time lag between before that information gets entered into the state registry. We believe that such a serious citation warrants due process, but currently there is no time limit on the beginning of the process and on the end, not in the middle where due process occurs that needs to be fixed. For instance, there is no time limit on states completing the investigation that could lead a nurse aide to be cited nor in a decision being rendered after a hearing has taken place. That just extends the time period that a name would actually go on the registry if, in fact, a nurse aide was determined to be abusive. At the states we visited, it took 5 to 7 months on average between the initial finding of abuse and its entry in the registry, and several cases took over 2 years. During this time, a nursing home employer consulting the registry would have found clean records for these aides. There can be other cracks in employment screening. For instance, in the case of certain employees such as laundry aides or maintenance workers, there is no registry or licensing entity for a nursing home employer to consult. These individuals would have to have a criminal conviction which would be found in law enforcement records before an abuse history would show up on a background check. Furthermore, some states allow individuals to begin working before facilities complete their background checks. In Illinois, a new employee can work for 3 months before the criminal background check is complete, while in Pennsylvania, an aide can work for 1 month under these circumstances. In Georgia, on the other hand, criminal background checks must be completed within 3 days of the request and nurse aides cannot start work before then. Overall, we believe that existing safeguards need to be strengthened and we are making five recommendations for CMS to address the systemic problems discussed in our report. However, state officials and nursing homes must also practice unflagging vigilance. The extreme vulnerability of the nursing home population calls for nothing less. Mr. Chairman, this concludes my prepared remarks, and I will be glad to answer any questions any of you may have. [The prepared statement of Ms. Aronovitz follows:] [GRAPHIC] [TIFF OMITTED] T8785.008 [GRAPHIC] [TIFF OMITTED] T8785.009 [GRAPHIC] [TIFF OMITTED] T8785.010 [GRAPHIC] [TIFF OMITTED] T8785.011 [GRAPHIC] [TIFF OMITTED] T8785.012 [GRAPHIC] [TIFF OMITTED] T8785.013 [GRAPHIC] [TIFF OMITTED] T8785.014 [GRAPHIC] [TIFF OMITTED] T8785.015 [GRAPHIC] [TIFF OMITTED] T8785.016 [GRAPHIC] [TIFF OMITTED] T8785.017 [GRAPHIC] [TIFF OMITTED] T8785.018 [GRAPHIC] [TIFF OMITTED] T8785.019 [GRAPHIC] [TIFF OMITTED] T8785.020 [GRAPHIC] [TIFF OMITTED] T8785.021 [GRAPHIC] [TIFF OMITTED] T8785.022 [GRAPHIC] [TIFF OMITTED] T8785.023 The Chairman. Thank you very much, Ms. Aronovitz, for the good work that GAO has done for this committee. Senator Lincoln, do you want to introduce Mark Malcolm? Senator Lincoln. I would be honored to. Thank you, Mr. Chairman. We are extremely honored in Arkansas to have Mark Malcolm who was appointed as coroner of Pulaski County on January 1, 1995 by the Pulaski County judge and serves as the only full-time county coroner in our State of Arkansas. He served as the Chief Deputy Coroner for 8 years prior to being appointed as coroner. He also serves, however, as instructor for the University of Arkansas Criminal Justice Institute, the University of Arkansas at Little Rock, and the University of Arkansas for Medical Sciences. He also founded the Pulaski County Coroner's Office of Professional Education Program which provides death investigation training to law enforcement officers, prosecutors and coroners throughout our State. He also holds the fellow status with the American Board of Medi-Legal Death Investigation and is one of 26 board certified death investigators in the United States. So, Mr. Chairman, I think you will agree along with that criteria and background, and also the fact that he helped to introduce legislation in our legislature, our state legislature, to require that all deaths of nursing home patients be reported to the county coroner for investigation regardless of the cause of death, and certainly without this law, many cases of abuse resulting in the death of nursing home residents would have gone and would continue to go unreported. So we are extremely honored and privileged to have such an individual in our state who cares so much about making sure that in point in fact these laws are adhered to and what is on the books is actually practiced. We appreciate very much the service you give to the people of Arkansas, Mr. Malcolm, and we welcome you to the committee. Mr. Malcolm. Thank you. The Chairman. Mr. Malcolm, with that powerful introduction, you are on. STATEMENT OF MARK MALCOLM, CORONER, LITTLE ROCK, AR Mr. Malcolm. Thank you, Mr. Chairman, and members of the committee. Thank you for the opportunity to be here, and certainly I am grateful for Senator Lincoln's introduction. In January 1994, my office began fielding the first inquiries regarding deaths of nursing home patients. The questions came primarily to us from family members and were generally centered on the level of care or lack thereof provided by the facility. More specifically, did the level of care contribute to or cause the death? The initial investigations consisted primarily of nursing home medical and hospital record reviews, study of physician orders, physician interviews, interviews of both current and former nursing home staff members, and in most cases we found that the level of care was adequate and did, in fact, not contribute to the cause of death. Some cases, however, warranted further scrutiny. From 1994 until 1998, my office conducted six exhumations of nursing home patients. After a full post-mortem examination, all six were determined to have been unnatural deaths. Two cases were ruled as medication errors and four were asphyxial deaths. The case that drew the most attention was that of a 78- year-old man who died on the evening of July 28, 1998. He had been improperly placed in a vest restraint and was discovered wedged between his mattress and bed rail. He was so tightly compressed in the position that four staff members had to work to free him. He was dead by the time he was extricated. Despite the circumstances of the death and a large injury to his upper chest that was evident at the time of his removal, the administrator of the home notified the family that the decedent had died naturally and in his sleep. An audit by the Arkansas Department of Human Services Office of Long-Term Care brought that death to my attention and an investigation began. Following exhumation and autopsy, the death was ruled as positional asphyxia. Under existing Arkansas law, this death and other cases of unnatural death in nursing homes should have been reported to the coroner and to law enforcement, and despite the existing statutory requirement to report the deaths, nursing home administrators chose to release the decedents to funeral homes preventing that legally required investigation. Whatever the motive, it was clear that a law directed specifically to long-term care patients was necessary. In January 1999, I began working with the counsel for the Office of long Term Care. We authored a bill, submitted it to the state legislature. That bill was passed and signed into law as included in your packet of information today. Essentially what the law requires is that all deaths of nursing home patients in Arkansas be reported to the county coroner regardless of the cause of death. The law further requires that if a person is transferred to a hospital from the nursing home, and they die within their first 5 days of admission, that case also must be reported to the coroner. Every nursing home patient who dies in Pulaski County, Arkansas is examined by me or a member of my staff. In addition to the physical examination, there are complete reviews of medical records, interviews with physicians, facility staff and family. We compare the pharmacy records to the doctors' prescriptions. We match that against the nurses' notes to ensure that medications are properly administered. Since July 1, 1999, my office has conducted approximately 2,400 nursing home investigations. The majority of these cases we have found the level of care to be adequate. In 56 of these death investigations, we have uncovered a much different story. We have dinner-plate sized bed sores with infected, necrotic, dying tissue, infected feeding tubes, rapid and unexplained weight loss, dehydration, improperly administered medications, and medication errors that have resulted in death. We have found basic needs such as general hygiene and dental care neglected, urine and fecal matter dried on bed linens and in diapers that have been left unchanged for what is most assuredly hours. We have seen a patient whose care had been so poor that a mucous growth formed on the roof of her mouth. It was left untreated. It eventually sloughed off and she asphyxiated and died. When my staff and I arrived to examine this woman and conduct our investigation, there were ants on her body and in her bed. Without this law in place, in my State, these cases would go unreported and unnoticed and the decedents would simply be released to funeral homes and the families would be left none the wiser. In 16 years at the coroner's office in Pulaski County, I have been active at my state legislature on a variety of different issues, but I can tell you, members of this committee, none more important than Act 499 of 1999. The intention of the legislation was solely for the protection of the long-term care patient. However, independent oversight such as that provided by my office can also provide a modicum of protection to respectable, responsible facilities against frivolous accusations and unwarranted claims. Facilities that are staffed by competent, conscientious health care professionals welcome an independent confirmation of their good care in the currently litigious atmosphere of their industry. Mr. Chairman, that concludes my prepared remarks. Be happy to answer any questions. [The prepared statement of Mr. Malcolm and related information follow:] [GRAPHIC] [TIFF OMITTED] T8785.024 [GRAPHIC] [TIFF OMITTED] T8785.025 [GRAPHIC] [TIFF OMITTED] T8785.026 [GRAPHIC] [TIFF OMITTED] T8785.027 [GRAPHIC] [TIFF OMITTED] T8785.028 [GRAPHIC] [TIFF OMITTED] T8785.029 [GRAPHIC] [TIFF OMITTED] T8785.030 [GRAPHIC] [TIFF OMITTED] T8785.031 [GRAPHIC] [TIFF OMITTED] T8785.032 [GRAPHIC] [TIFF OMITTED] T8785.033 The Chairman. Thank you very much, Mr. Malcolm, for your testimony. Next from Louisiana Sheriff Charlie Fuselier. Charlie, thank you for coming up. We really appreciate it. STATEMENT OF CHARLES FUSELIER, SHERIFF, ST. MARTIN VILLE, LA, ON BEHALF OF THE NATIONAL SHERIFFS' ASSOCIATION Mr. Fuselier. I would like to thank you, Senator Breaux, and the members of the Special Committee on Aging. The Chairman. Pull that mike a little closer, if you can, a little bit closer. Mr. Fuselier. Thanks for inviting me to testify as to law enforcement efforts to address nursing home abuse at this hearing on crimes against the elderly in nursing homes. It is my hope that this testimony will help to improve the quality of life for older adults residing not only in nursing homes but in any type of residential care facility which includes group homes, assisted living facilities, and mental retardation facilities. By initiating the first Triad Program in the Nation on August 30, 1989, the St. Martin Parish Sheriff's Office has an established and long-standing record of commitment to older adults that is recognized as extending beyond my jurisdiction in St. Martin Parish, LA. The Triad Program has proved to be a successful crime prevention program aimed at older adults. Currently, there are some 834 Triad Programs in 47 states. Additionally, England, Canada, and Australia have expressed interest in utilizing the concept in their countries. In 1990, the St. Martin Parish Sheriff's Office instituted the statewide Elderly Crime Victim Assistance Program through grant funding from the Louisiana Commission on Law Enforcement and the Administration of Criminal Justice. In 1992, the Elderly Protective Services Program was initiated in the State of Louisiana. These two programs served to heighten our understanding of the severe vulnerability of infirm older adults especially when they are in the care of those persons they know and trust. During the 1994 legislative session in Louisiana, legislation was enacted creating the Committee for Law Enforcement Services to the Elderly. This committee was formed in response to the growing concern of crimes against the elderly to include abuse, neglect and exploitation of the elderly residing independently in their homes as well as those in residential care facilities. Representation on this committee includes members from the Louisiana Commission on Law Enforcement, the Louisiana Sheriffs' Association, the Louisiana Municipal Chiefs of Police, the State of Louisiana Justice Department, the Governor's Office of Elderly Affairs, the Councils on Aging and the American Association of Retired Persons and the Louisiana District Attorneys Association. Early on members of this committee recognized and expressed a concern about law enforcement's response to crimes in residential care facilities. The concern grew that there was an apparent lack of continuity in the response by law enforcement from jurisdiction to jurisdiction to crimes committed in residential care facilities. As a result of the committee's concern, a Crime in Residential Care Facilities Conference was held in Baton Rouge, LA on November 12, 1997. The agenda included a legal session, investigating crimes in residential care facilities, physical and behavioral indicators of abuse, neglect, and the role and responsibilities of the various investigating agencies. The roles and responsibility section of that conference included a panel of representatives from the Department of Health and Hospitals, the State of Louisiana Justice Department, Elderly Protective Services, the Louisiana Nursing Home Association, state long-term care ombudsman, the police supervisor of Baton Rouge Crimes Against the Elderly and a sheriff. In Louisiana, this conference was the impetus for the underlying questions about local law enforcement's response to crimes in residential care facilities. In 1999, the legislation was enacted forming the Aged Law Enforcement Response Team, the ALERT officer. The ALERT program established a 40-hour elderly service officer certification through the Peace Officers Standard and Training Council. Law enforcement officers successfully completing the course lectures and written tests were certified as elderly service officers. The objectives of the ALERT program are: to create a statewide network of law enforcement officers with specialized training in working with the elderly to ensure uniformity in the delivery of high quality law enforcement services to elderly citizens; to have the ALERT ESO officer serve as the primary point of contact when elderly victims are involved; and to provide training within their agency and others in the parish on effectively assisting older adults. These objectives pertain to all elderly in Louisiana whether residing independently or residing in residential care facilities. The 40 hour curriculum includes 19 hours of instructions on identification of abuse, neglect and exploitation; the role of the long-term care ombudsman in nursing homes; investigating crimes in residential care facilities; criminal statutes dealing with the cruelty, exploitation and sexual battery of the infirm; and the United States Attorney's Office role in nursing home abuse. Plans are currently being drafted for 2003 to include having at least one ALERT trained assistant district attorney in each judicial district. In conclusion, there is a general assumption that because the infirm elderly are residing in residential care facilities, that government will assure that they are in a safe environment. The reality is that because of their confinement, in some instances, the infirmed elderly can be trapped in a situation of abuse and have no one to turn to for protection. Certainly, physical and sexual abuse in residential care facilities are a strong priority that needs to be addressed by law enforcement with the same type of responses given to crimes committed to other citizens living independently outside a facility. Law enforcement's general perception is that they are treated the same as everyone. The reality is that without specialized training such as offered by the ESO ALERT program, law enforcement generally does not have the skills to properly evaluate such a complex situation. Twenty-five years ago, there were very few juvenile officers. Now, they are a significant part of the law enforcement community. As we the baby boomer arrive and outnumber our nation's youth in the next 10 to 15 years, the ESO ALERT officer will be an essential part of the law enforcement community, much like the juvenile officers are today. Chairman Breaux, and members of the Special Committee on Aging, I submit that providing for expanded training for law enforcement officers to address the growing needs of a rapidly aging population is clearly necessary to address the growing problem of physical and sexual abuse in residential care facilities. I look forward to working with you and I stand ready to take your questions. 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Sheriff Fuselier, thank you for a really terrific statement and a very good story. Mr. Blanco, Henry Blanco, we are pleased to receive your testimony. STATEMENT OF HENRY BLANCO, BOARD MEMBER, NATIONAL ASSOCIATION OF ADULT PROTECTIVE SERVICES ADMINISTRATORS, PHOENIX, AZ Mr. Blanco. Mr. Chairman, members of the committee, I would like to extend congratulations to you and the committee for providing a forum to discuss this serious issue. I am the Program Administrator for the Aging and Adult Administration within the Arizona Department of Economic Security. We are also the designated unit on aging under the Older Americans Act. The Chairman. Mr. Blanco, speak up a little bit and get that mike a little bit closer. It does not pick it up too well. Maybe push it down a little bit. I think it is a little too high. There you go. Mr. Blanco. However, today I am testifying before you as representative of the National Association of Adult Protective Service Administrators, or NAAPSA. The association represents Adult Protective Services, APS, programs nationwide by providing advocacy, training, research and innovation in the field of APS. All states in our union have identified APS programs. However, there is no Federal law that provides direction for APS. As a result, program parameters are entirely up to each state. Some APS programs are not involved in investigating allegations of abuse in long-term care facilities. Adult Protect Services are those services provided to elderly and disabled adults who are in danger of abuse, neglect or exploitation, and who are unable to protect themselves and have no one to assist them. It is estimated in the United States, two million older persons and persons with disability are abused, neglected or financially exploited each year. Most experts believe this number may be only the tip of the iceberg since many victims are unable to report their abuse and have no one to do so for them. According to the most recent figures from the National Center for Health Statistics, there are currently 16,700 nursing homes in the United States with 1.8 million beds serving 1.6 million residents. Of these homes, 95.6 percent of them are certified for Medicaid and/or Medicare participation. Without question, the physical and sexual abuse of our elders in long-term care facilities must be highlighted and addressed with all possible resources. I would like to provide you an example of three cases that APS is involved in, and I have further examples in my written testimony. The first case was an 64-year-old woman who was placed in a long-term care facility. The client was to have a diagnostic test, a barium enema; the doctor had ordered one tap water enema to be given the night before. The client, however, was not an easy person to get along with, often demanding and belligerent. Two LPNs decided to get even with the client because of her behavior and gave her 15 enemas with approximately three feet of tubing completely inserted into her rectum. None of this would have come to light if the client had not complained that the nurses had verbally abused her. The case took 3 years to get to court. In a second case, an 85-year-old woman was raped at a local nursing home. She was alert, oriented and competent. The client said the male caregiver had raped her. A long-term care facility chose not to believe her. Instead gave her two Tylenols, told her to go bed, get a good night sleep and they would discuss it in the morning. Another source in the facility reported the incident to APS and to law enforcement. The local law enforcement Sex Abuse Unit was able to retrieve the sheets. Semen was found on the sheets. She had been raped. The certified nurse's assistant was arrested, tried and sent to jail. In a third case, a 74-year-old woman was raped by a CNA. Another staff person saw the CNA with his pants down around his ankles and asked what was going on? The CNA said he was ``adjusting himself.'' The victim unfortunately was demented, unable to communicate. Rape could not be substantiated and charges were not filed. These cases are complex and involve the necessary coordination of many different jurisdictions and agencies. Coordination between APS, law enforcement, regulatory agencies, professional licensing boards, long-term care ombudsman programs, Medicaid fraud units, to name a few, are critical in successfully addressing these issues. There are several initiatives that we would recommend. My full statement includes additional recommendations. I would like to highlight a few of them. The first one as the congressional report indicates, salary and training for caregivers is a major issue. The issue of salaries, other benefits and working conditions and their relationship to quality must be addressed. Second, many states have mandatory reporting laws. Some states provide protection from civil or criminal liability for the reporting source. Other states protect the reporting source and retribution by their employer for reporting to APS or law enforcement. These protections and requirements should be available nationwide. Third, the Social Services Block Grant is the only fund source of Federal funding that provides special funds for the delivery of adult protective services. SSBG has been reduced over the past few years from 2.8 billion to 1.7 billion. Thirty-one states depend on these funds to provide protective services to victims like those I have described. Although the president's budget for fiscal year 2003 holds SSBG at 1.7 billion, we are heartened by the recent news that the White House is supportive of Senator Lieberman's and Santorum's care legislation that would restore SSBG funding on a temporary basis. Their bill is Senate bill 1924. Fourth recommendation, we recommend that we provide a dedicated funding source for the expansion, enhancement and development of services for a nationally funded APS program. Fifth recommendation would be to strengthen the requirements for fingerprinting and background checks for all employees of long-term care facilities. A major obstacle in this area is the expense and the amount of time required for fingerprint clearances. A sixth recommendation is to recognize that physical and sexual abuse occurs at all levels of care, and most be aggressively addressed regardless of where it occurs. A seventh recommendation would be to review Federal regulations, both programmatic and funding, to ensure that obstacles to coordinating and cooperation are not created for the many state and Federal agencies involved in long-term care facilities. One of the areas to review is the ability to share information, which may be essential but considered confidential. Adults served by Adult Protective Services are among this country's most vulnerable citizens. Those in our nation's long-term care facilities are often most isolated. They need our help. They deserve your attention, and they have earned the right to be safe in their older years regardless of where they reside. Mr. Chairman, I would like to submit my full testimony for the record. Thank you. The Chairman. Without objection, the whole statement, of course, will be made part of the record. [The prepared remarks of Mr. Blanco follow:] [GRAPHIC] [TIFF OMITTED] T8785.082 [GRAPHIC] [TIFF OMITTED] T8785.083 [GRAPHIC] [TIFF OMITTED] T8785.084 [GRAPHIC] [TIFF OMITTED] T8785.085 [GRAPHIC] [TIFF OMITTED] T8785.086 The Chairman. Mr. Blanco, if you would kind of pass that mike over to Ms. Holloway so she will be able to give us her testimony, we would appreciate it. Ms. Holloway, thank you for being with us. STATEMENT OF DELTA HOLLOWAY, RN, BOISE, ID, ON BEHALF OF THE AMERICAN HEALTH CARE ASSOCIATION Ms. Holloway. Thank you. Good afternoon. The Chairman. Same thing, these mikes. You got to really kind of get close to them to make them really work well. Ms. Holloway. OK. We will try to do this. OK. Good afternoon, Senator Breaux and committee members. Thank you for inviting me this afternoon to testify before you. My name is Delta Holloway and I have worked with the elderly and the frail for the last 25 years. I am a registered nurse. I am a nursing home administrator. I have served my profession as the Director of Nursing and I currently am the President and Quality Assurance Officer for Western Health Care in Boise, ID. I am testifying today on behalf of the American Health Care Association. AHCA represents over 12,000 long-term care facilities, but most importantly these facilities care for over one million patients. First, I must say that the examples of abuse, the many cases of abuse that we have heard today, are utterly deplorable. Incidences like these just must be prevented. I want to say for the record on behalf of myself, AHCA and all of the caregivers, criminal acts while rare in nursing homes must be prosecuted to the fullest extent of the law. It is important that we ensure the public is aware that these terrible situations are by far the exception and not the rule. The report released today by the General Accounting Office raises several serious issues and makes very many sound recommendations. We concur with each and every one of GAO's recommendations. To be most effective, providers need two things. We need a clear definition and process for abuse, and we need partnership with law enforcement. Yes, it is important to recognize our residents have medical conditions that make some of the activities of daily living very difficult. Some medically necessary clinical procedures involve therapeutic contact and oftentimes that contact might cause pain. But therapeutic contact is not abuse! A definition that distinguishes between appropriate, although uncomfortable, care and contact and abuse must be established. For an example, I provided care to an elderly woman with significant dementia and difficult behavioral issues. My patient acted out and was abusive to her caregivers. She often refused meals and her care when she did not take her routine medications. When she was on the medications, she was much happier and she truly did enjoy a better quality of life. On one occasion, one of my registered nurses attempted to force her mouth open to administer the medication. A certified nursing assistant witnessed this act and reported it to me immediately. I called the survey agency immediately and started my own investigation. I suspended the nurse with pay until I could complete a further investigation. After our investigations, the facilities, the survey and certification agency, and in this case the state board of nursing, the state board did not revoke her license. However, I did terminate her. Second, providers need to be acknowledged as full partners with state agencies and law enforcement in the abuse prevention, reporting and investigation process. A system that is not adversarial and views providers as a part of the solution would be far more effective and much more beneficial to what matters, and that is our patients. Nursing homes are required to report all incidents of abuse, or suspected abuse, within 24 hours, to conduct an investigation and to give a written report to survey and certification agency within 5 days and other state agencies in some states. Among the 50 states, there are many different reporting requirements that are probably in need of standardization. Streamlining and standardizing the process so that providers report an allegation of abuse to the state survey agency would eliminate confusion among consumers, patients, and providers. As I said, we wholeheartedly agree with the recommendations from the GAO report. We do have several suggestions that might even strengthen those. First, there should be one single point of contact to make a report, preferably to the state survey agency. There would be one number listed. Second, we believe that education and training of local law enforcement and Medicaid Fraud Control Units on the nursing home environment, on the patients that we serve, and on the staffing is highly needed. Finally, we need a precise definition of what is abuse that will lead to a better understanding of the problem and more successful targeting and eventually the prosecution of those that are truly guilty. AHCA has been working with Senator Kohl to develop a national criminal background system check. Any such system should act quickly, and it should include all health care settings. This should also be funded 100 percent so as to not take away the resources for our primary mission which is patient care. We support Senator Kohl's legislation and we will work toward passage of this bill. Last, but certainly not least, government must be a partner in facilitating staffing of our homes. CMS just finished a report that documents the need of over 400,000 additional nursing staff right now. Unfortunately, government has not met its responsibility for funding this level of staff, nor has it helped to develop the needed workforce. In summary, thank you for the invitation to testify and for treating providers as a part of the solution to protect residents, to prevent abuse, and to report the incidents. Mr. Chairman, we care for our patients all day everyday, both professionally and personally. No one wants to prevent abuse or punish or remove perpetrators more than we do. We stand ready to work with Congress, the administration, local law enforcement, ombudsmen, adult protection, and any other entity that will allow us to be a part to protect the vulnerable seniors in our country. Thank you for the opportunity to testify on this very critical topic. [The prepared statement of Ms. Holloway follows:] [GRAPHIC] [TIFF OMITTED] T8785.087 [GRAPHIC] [TIFF OMITTED] T8785.088 [GRAPHIC] [TIFF OMITTED] T8785.089 [GRAPHIC] [TIFF OMITTED] T8785.090 [GRAPHIC] [TIFF OMITTED] T8785.091 [GRAPHIC] [TIFF OMITTED] T8785.092 The Chairman. Thank you, Ms. Holloway, and thank all of our panel for a very enlightening, very informative, and I think very helpful testimony. Let me begin with Ms. Aronovitz on behalf of GAO. As I take it, the study that GAO did for the committee involved surveys in Georgia, Pennsylvania and Illinois. Were those the three states? Ms. Aronovitz. We looked at 158 cases of reported abuse in those three states. That is correct. The Chairman. I take it those states were selected to try and give us an indication of how things would be on a national level? Ms. Aronovitz. Absolutely. We had no intention of doing an evaluation of those particular three states. As a matter of fact, what we tried to do is use those states to learn about some of the systemic problems that occur nationwide. The Chairman. You have helped us a great deal. In the three states that you all surveyed at GAO, were there found to be requirements in the law or by practice of a requirement that the nursing homes report abuse that occurred in the home that could be potentially criminal to law enforcement or was it a requirement to report to the health officials of the state or were there no requirements at all? Ms. Aronovitz. There is actually no Federal requirement that nursing homes report abuse to local law enforcement or their Medicaid Fraud Control Units, who are the state prosecutory unit or agency. The Chairman. That was in those three states or is that nationwide? Ms. Aronovitz. No. Nationwide there is no Federal requirement. Now what we found in the three states that state law often requires this type of reporting, but we also found that it does not always happen in a timely way. The Chairman. You mentioned the average time would be some 5 to 6 months in some cases to report an abuse case? Ms. Aronovitz. That was the situation where a nursing home reported abuse to the state and the state decided to cite a nurse aid and put their name in the registry. We found cases where there was delayed reporting by the nursing home in about half the cases that we looked at where nursing homes were supposed to report to the state. Nursing homes are supposed to report within 24 hours and that is defined as the day of or the day after the incident took place. But we found in about half of the cases that we looked at that reporting took place a week or 2 weeks later and actually we found eight cases where the nursing home reported the incident over 2 weeks late. The Chairman. Obviously the longer the time between the incident and the reporting, it makes it much more difficult if not impossible to investigate. Ms. Aronovitz. Also, it keeps residents who are subject to abuse vulnerable because no one is protecting them during that time. The Chairman. One of the things I mentioned is the thing that we did--I mean the rule that we passed back in--when was this--1998, with regard to the attorney general, FBI being able to do background checks on employees in these type of facilities. It actually says that the attorney general may charge a reasonable fee not to exceed $50 per request to any nursing facility or home health care agency requesting a search and exchange of records pursuant to this section, and do you find that this is being done by any of the facilities that you worked with? Ms. Aronovitz. Actually, there is no Federal requirement that a nursing home do a background check. There are state requirements that that happen. The Federal requirement is that nursing homes do not hire employees with a criminal background that has a history of abusing nursing home residents. The Chairman. But the information we have is that the states are not really availing--I mean the various institutions are not really taking advantage of this provision that would allow them to do these background checks? Ms. Aronovitz. That is exactly right. We found in the three states that even though there are state laws requiring criminal background checks, they are usually done only at the state level, and when we talked to the FBI, 29 states do not really avail themselves of Federal FBI checks, nor do other states routinely. The Chairman. So obviously, if a person was a criminal in one state and went to work in a second state, that state check would not disclose that they were, in fact, hiring a criminal? Ms. Aronovitz. In most cases that is true. Once in awhile, the state would require the nursing home to go to another state if they know that in the last 2 years an applicant worked in a different state. But typically that would not be the case and the information about background, criminal background, in another state would not be reported. The Chairman. OK. This investigation is very helpful, but an investigation without follow-up and recommendations and actions by Congress is not worth very much. Can you summarize for the committee the recommendations that GAO has presented to this committee? Ms. Aronovitz. Absolutely. The first one is that there be a Federal requirement that the state survey agencies immediately contact local law enforcement or the MFCUs when there is a confirmed allegation of abuse. The Chairman. That is--I do not want to interrupt you--but that is law enforcement as opposed to a social worker or the state health agency? Ms. Aronovitz. That is correct. The nursing homes already have to report to the state survey agency. We think that there should be a requirement that this also be reported immediately to the local law enforcement of MFCU. The second is that the Centers for Medicare and Medicaid Services need to convince states to make it much easier to know how to report abuse, and one suggestion, having one phone number would be very useful. We found in looking at phone books in nine cities in the three states that it was very common to get phone numbers that look like you could report abuse. For instance, numbers in the book that said ``senior help line'' or ``fraud and abuse line,'' and in fact, those numbers had no jurisdiction or ability to take the calls at all or complaints. The third one would be to clarify the definition of abuse so that all states would be applying that standard consistently and appropriately. The fourth one would be to assure that nursing homes do not hire people with criminal backgrounds, and, in fact, CMS needs to study the prevalence of this and to try to figure out other options for convincing states to assure that nursing homes are not, in fact, hiring people with criminal backgrounds, and also we feel very strongly that we need to shorten the time period between the time a state survey agency decides to cite a nurse aide with abuse and the time it actually gets reported to the registry. The opportunity there to not disturb due process would be at the beginning of the process. Right now there is no requirement that a state survey agency investigate the case and make a decision about whether to cite a nurse aid within any reasonable timeframe. In addition, at the end of the process, once the hearing takes place, there is no requirement that the hearing officer make a decision and report those findings immediately. The Chairman. Thank you very much for that very good summary. Ms. Aronovitz. You are welcome. The Chairman. Sheriff Fuselier, I am really proud of your testimony. I think this is an indication of one example when our state has done a very credible job. You can be very proud of the leadership role that you have played in putting this process together, and I am just looking at the map you have here of where we have the ALERT officers. It covers almost the entire State of Louisiana, and where you have the elderly services officers in addition in some parts. I mean can you tell me the Triad Program, I mean it is an association that was really put together through AARP and law enforcement officials and how does that structure work? Mr. Fuselier. Well, the Triad Program is a program with the sheriffs, the chiefs and the older American groups, generally AARP or the Council on Aging, where we come together and form a SALT council and get interested people who are interested in the prevention of the victimization of the elderly to actually sit down at a table and discuss the problems that we are having. This may include people from the nursing homes, clergy, anybody who provides this service to the seniors, and this is one way to pass information across. I think it was probably the forerunner of community oriented policing, because this happened before that. The Chairman. Ms. Aronovitz was talking in terms of there is a requirement that the nursing homes report abuse to the state health officials. You know there are several categories here and I think logic indicates, a common sense approach to this. You can have a nursing home that gives poor treatment. You can have a nursing home that the poor treatment becomes abuse. Then you can have a situation where the abuse is so clearly defined as a criminal act in the case of a person with a broken neck because they have been thrown against the wall, or a rape victim who suffered that indignity in a nursing home. Do we get that in Louisiana in the sense of are we having people from nursing homes reporting to law enforcement when there is a suspected case, not just of mistreatment, but I mean a criminal act that occurred? I mean there is a natural tendency for nursing homes to say, look, we are going to handle it internally. There is a natural tendency for police officers to say we have got enough problems controlling street crime. We do not have time to go into the nursing home. They will take care of it. How does it work in the real world? Mr. Fuselier. I do not think in Louisiana we have taken that position. I think our position is that we want to protect our elderly, and I think you can see from the testimony and the legislation that was enacted that we have taken steps to bring these people together to address the problem, exactly the problem that you have said, is that, you know, we want to make sure that the nursing homes are reporting, and I would say there are a number of cases probably that are not reported that should be. What we have, I think, is there was testimony we need that one number, and they would get back to local law enforcement, because I think sometimes we do have some of these things fall through the cracks, and not necessarily anyone's fault. The Chairman. Well, I am very proud of what you have done. I think the message that could come out from Louisiana, ``Don't mess with the elderly.'' Mr. Fuselier. That is exactly right. The Chairman. Ms. Holloway, in your testimony on behalf of the nursing home industry as well as your personal experiences, this is a difficult situation that needs to be addressed. I am very pleased that you have indicated the support of the industry for the recommendations from GAO, and I would say again that the vast majority of nursing home facilities provide very much needed service to people who sometimes are very seriously ill and need 24 hour a day, 7 day a week care. There will always be bad actors in any business, in any profession anywhere in the country. Our responsibility, industry's responsibility, is to come as close as we possibly can to eliminating it. All of these suggestions or some of them are costly, and I know that many of the nursing homes are operating on very narrow margins, many of which have gone under financially. You put cameras in nursing homes. That is going to be a huge expense. I would think that the background checks can be done at a minimum amount of cost, particularly with the FBI doing it. Nursing homes or anyone else in these type of situations dealing with vulnerable people should not hire people with criminal records in that area, and I am all for an individual's rights and responsibilities and everything else, but I do not want to see people who abuse people working in nursing homes. I mean that is just my common sense approach. I think the members of the committee would agree with. What I guess I would ask among other things would the industry support a requirement that these cases when they are found out not only be reported to a social worker or the state health institution, but also be reported to law enforcement? Because I take it that that is not now a Federal requirement. What is your comment on that? Ms. Holloway. I would support that, and I would think that if we had the one number and it did get reported to the licensure agency, it would be good if that agency would call the local police department. I will say that in my state in 1998, a law was passed that if there is a death or serious injury to an adult, a vulnerable adult, an elderly person, the nursing home, the physician, the family, whomever might be aware of that, needs to report to law enforcement within 4 hours. The Chairman. Let me ask. This is the real question here. We can have all the reporting requirements we want. How do we assure that when a criminal act occurs in a nursing home facility, that, in fact, someone in that facility reports it to criminal law enforcement authorities? I know we can have the rule. Ms. Holloway. Sure. The Chairman. The CMS, Center for Medicare and Medicaid Services, can adopt a resolution that is saying, look, the Federal Government tax dollars are paying most of the cost of operating the facilities, and we have now a national requirement that these things be reported if they occur within 4 hours or within an hour, immediately, but if a nursing home decides we are going to handle this internally, it would be horribly embarrassing if we reported this. I think the opposite. I mean these things are going to be found out. We have seen it today. I mean all of these incidents, they tried to cover them up and people find out about it. Eventually it comes to light, and I would dare say that a nursing home that has tried to cover it up is going to look much worse in the eyes of the public and their constituents if they did not report it and take prompt action than one who admits it happened and reported it promptly to law enforcement. That is a better nursing home than one who does not report, but how do we do that? Do we have to have a policeman in every nursing home in this country? Ms. Holloway. I hope not. The Chairman. How do we do it? Ms. Holloway. I am happy to say, I do not like this because it is labor intense, but I am liking it more and more. In our state, we are asked by survey and certification to complete an incident report. That is a whole different form that we have to fill out than the record. First of all, if there is any resident to patient situation, abuse, or there is suspected abuse, we must call the survey and certification within 24 hours. I am proud to say that in our state we call them right away because we want them to be aware that there is a potential problem. We also call ombudsmen. We do not call adult protection unless a family member is involved. We are to complete this form and it gives the specifics about how we found the resident, our investigation, and we must talk to all levels of staff, nursing assistants, nurses, social workers, activity people, anyone that may have been involved with that resident, we must develop a plan of action so that this will not to the best of our ability happen again. The Chairman. I take it that in your state there is no legal requirement to report to law enforcement officials if the type of things happen in that nursing home that we heard about here today? Is there a legal requirement to do that? Ms. Holloway. If there is death or serious injury, we do. The Chairman. If there is death or serious injury, there is a legal requirement to report not just to the health department but to law enforcement? Ms. Holloway. In 4 hours. The Chairman. Within 4 hours. Ms. Holloway. Yes. The Chairman. OK. Thank you. I want to assure you certainly this senator's intent is to try and work with the industry. This is an important industry. It provides important services to millions of senior citizens. We have to assure that it is being done to the high quality standards that you spoke about here today and we are going to work with you all to ensure that that happens. It is like those first three people that came up indicated that we hear about this all the time and nothing gets done. Something will get done. Ms. Holloway. Senator, I believe something should get done. The Chairman. Thank you for that attitude. Ms. Holloway. I need to say that when the survey agency visits our facility, they read charts, they look for incident reports, and if from our call, they feel that something does not sound right, they come to the facility, even before the 5 days when they have the full report. They call and see what kind of an effect has this situation had on the resident, and I will tell you that they will be out immediately if there has been an adverse reaction by the patient. The Chairman. Thank you very much for your testimony again. Ms. Holloway. OK. The Chairman. Senator Wyden. Senator Wyden. Thank you, Mr. Chairman, and first let me tell you how much I appreciate your determination. As you know, this is not the first time this has come up. This is part of a pattern. We have talked about it now for several hours. Just as sure as the night follows the day, you have a report like this GAO report outlining the abuses, the industry and government pledge that there are going to be changes, and then a year or so later, there is going to be backsliding. I mean that is the pattern on this issue. Ms. Aronovitz, would you disagree with that? Ms. Aronovitz. No, I think it is very important that there be the types of fixes that will stick, and right now it is clear that there are a lot of administrative gaps and criminal protection gaps in the system, absolutely. Senator Wyden. I think we are going to have a bill and an ongoing effort led by our chairman that others of us are going to sponsor so that we can follow up. I want to ask some questions to sort of amplify on some of the points that you made, and I think your report is superb. So here the country sits literally 20 years into this, the Federal Government having spent billions of dollars in Medicare and Medicaid, and the Federal Government does not require nursing homes to call police where there is a suspicion of a crime. Any sense how that could possibly have happened? Did the Federal Government just miss it or did people sit around and say we cannot afford this rule? What did you find on this point with respect to how something like that which seems like such a glaring flaw, how did it happen? Ms. Aronovitz. The Federal Government does require some administrative type procedures that ultimately might get at a problem in which a law enforcement entity ultimately gets involved, but there are too many steps and, in fact, it is too circuitous in terms of how that works. For example, a state agency could, in fact, immediately call law enforcement agency if it considers abuse that is reported to it by the nursing home to be severe enough, but it is not absolutely required. The MFCU, the Medicaid Fraud Control Unit, in many states is responsible for prosecuting in a criminal sense abuse, but, in fact, the state survey agencies sometimes screen the allegations and only refer the ones that they think are the most severe or the most prosecutable. There is an example in Illinois where every case of abuse that we are talking about at the severity we are talking about automatically goes to the Medicaid Fraud Control Unit and that unit with its professional prosecutors and criminal investigators review and screen those cases to decide which ones to pursue. We found that there was a much higher conviction rate per capita in that state when that process was used. The one thing I should say is that different states have different laws that sometimes are pretty tough in terms of their requirements. But they vary extensively across states in terms of what is required and what types of employees are included. For instance, in one state we found that nursing homes must report to the local law enforcement entities if it has to do with a criminal abuse from a caregiver. In other places, the law refers to all nursing home employees. There is enough gaps in state law and enough that we do not know about those state laws where there should be some Federal consistent oversight. Senator Wyden. I think what I was after, is how in the world could the Federal Government have allowed this to happen? I mean I find it hard to believe somebody was sitting up there at CMS or its predecessor and said, you know, let us just be rotten to seniors today and ignore their needs, but maybe you can enlighten us as to how this could have happened? Ms. Aronovitz. I think that CMS depends very much on the survey and certification agencies. As Ms. Holloway was describing, the surveys when they are conducted, either periodically or when a survey agency finds that there is serious abuse, goes out and does an investigation. When these surveyors go out, they look at the way nursing homes conduct their hiring practices and conduct their own investigations into these instances, and supposedly they will be checking to assure that nursing homes are following the administrative processes, and in cases where there were several allegations of criminal behavior, that those got reported. So I think the Federal Government's relying on these surveys to identify these cases does not always happen. Senator Wyden. Thank you. I think that addresses my concern. Let me ask you about some of your other findings, and again what I hope here is to just amplify a little bit so that we get a sense of why some of these problems are occurring. You cite the fact that patients and relatives are reluctant to report abuse and obviously there is fear of retribution, fear that patients who have nowhere else to go will be pushed out of the facilities. What did you hear from the patients and the families on this point? Particularly did the patients and families tell your investigators we just do not think they are going to prosecute and we do not think they are going to enforce the laws, so that is why we are not speaking out? Ms. Aronovitz. Actually, our investigation focused mostly at the overseers and the experts in the field, and we did talk to quite a few experts who look at this problem and also the Department of Justice which also believes that this is underreported, and one of the things that we find are that the bond or the relationship that builds between a family and the caregivers of a loved one is very, very strong. Sometimes we heard that the family will not even believe or accept the fact that a caregiver could be abusive and sometimes when a loved one comes to the nursing home and sees that there is a bruise, there is a lot of mystery around how that bruise happened, and sometimes the nurse aides and other employees are given the benefit of the doubt. As you mentioned, in other cases, the family is afraid that the loved one might be asked to leave the nursing home and another place will have to be found, and in some cases there are just very worried about accusing the nurse aide if, in fact, they do not have all the facts. These type of instances usually occur in the privacy of a resident and a caregiver or another nursing home employee. There is not usually a lot of witnesses to this, so there is a lot of mystery around some of these abusive situations have taken place. Senator Wyden. Just a couple of other questions. What about the findings of GAO with respect to the role of the nursing home administrator? What I have found, because I was the public member, as a Gray Panther co-director before I was elected to the House, I was the public member on the Nursing Home Board of Examiners at home in Oregon, and I think that so much of what happens in a nursing home is set by the tone of the administrator. I gather that you all made some findings that the nursing home managers are not exactly proactive on a lot of these matters as well. Can you amplify on that? Ms. Aronovitz. Yeah, we cannot project or talk about the universe of all nursing homes, and it is very important that we understand that, because there are tremendous nursing homes and nursing home administrators---- Senator Wyden. Absolutely. Ms. Aronovitz [continuing.] Who have devoted their life to protecting residents. But in our sample, we looked at 158 cases, 111 of them were instances where a nursing home found out about an abuse situation, and we could determine the dates that that abuse situation occurred. In about half the cases, in 54 of those cases, the nursing home administrator did not notify the state survey agency within the 24 hour required timeframe. In 37 of those cases, the state survey agency was notified 2 to 7 days late. In nine instances, they were notified a week to 2 weeks late, and as I said earlier, in eight of those 54 cases, the nursing home administrator notified the state survey agency over 2 weeks late. Senator Wyden. It is an important point and one we will want to ask you more about as we move to trying to put together a reform effort, because clearly the tone starts at the top, and you have addressed some shortcomings there. One question for you, Ms. Holloway, if I could. What would you say today are the most important self-policing efforts that the association has taken on to date? That is important because obviously you want to have as much self-policing as you can so that any Federal legislation is targeted to the areas where it is most needed. What would you say are the most important self- policing initiatives that the association has taken on to date? Ms. Holloway. I just have to say one more time, we just cannot tolerate this abuse. I believe it an honest statement from us that we wish to work with the recommendations of the GAO report and do something about a national registry that would indicate that a staff member should or should not be hired. Right now that is only certified nursing assistants, and should be broadened to others. The other very, very important issue is the criminal background check. I think that we have been policing ourselves in some states better than others perhaps. Some do do the Federal criminal background check. It costs about $50 an employee and you get the results in two to 3 weeks, where the state check costs $10 and you get it in five to 7 days. Senator Wyden. I want to ask one question for the sheriff if I could, and thank you for your excellent testimony and the service that you provide. I have always felt with law enforcement that at some level it comes down to a question of priorities. Law enforcement people are incredibly busy, and everybody is sitting there every single day having to juggle all of these issues that are so important in terms of protecting the public health and safety. What are your thoughts on how we make this issue, the elder abuse question, a higher priority in terms of law enforcement? Certainly, the dollars for training can help, but the end of the day, this is going to be about priorities and making this a major one. Mr. Fuselier. Well, Senator, this is one of the goals of the ESO officer, that we would have this person that would specialize in doing that. However, in all cases that is not necessarily his only responsibility, but it would be his, I guess, top priority, the same as we mentioned with juvenile officers. You have to take the time to do it. With our growing population, we are going to have no choice. We have to recognize the fact that servicing our elderly is a top priority. Senator Wyden. Mr. Chairman, thank you. The Chairman. Well, thank you, Senator Wyden, for your involvement, your continued involvement. I want to thank this panel. You all have been extremely helpful. We have got some good ideas, good suggestions, and thank the first panel once again. With those two panels, that will conclude this hearing. The committee will be adjourned. 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