More Can Be Done to Protect Residents from Abuse
Results in Brief
Allegations of physical and sexual abuse of nursing home residents frequently are not reported promptly. Local law enforcement officials indicated that they are seldom summoned to nursing homes to immediately investigate allegations of physical or sexual abuse. Some of these officials indicated that they often receive such reports after evidence has been compromised. Although abuse allegations should be reported to state survey agencies immediately, they often are not. For example, our review of state survey agencies’ physical and sexual abuse case files indicated that about 50 percent of the notifications from nursing homes were submitted 2 or more days after the nursing homes learned of the alleged abuse. These delays compromise the quality of available evidence and hinder investigations. In addition, some residents or family members may be reluctant to report abuse for fear of retribution while others may be uncertain about where to report abuse. Although state survey agencies in the three states we visited had designated telephone numbers for reporting abuse, we found it difficult to identify these numbers in the government and consumer pages of local telephone books for some of the major and mid-size cities in these states. However, we did find a wide variety of other organizations that, by their name, appeared to be able to address abuse complaints, but, in fact, had no authority to do so. Although CMS requires nursing homes to post these numbers, it is not clear that this ensures that residents and family members have access to this information when it is needed. In recognition of the need to better inform residents and family members about abuse reporting, the agency initiated an educational campaign in 1998. The campaign included development of a new poster with removable information cards containing appropriate numbers for reporting abuse. Although a pilot test was conducted, the poster has not been approved for distribution nationwide.
Few allegations of abuse are ultimately prosecuted. The state survey agencies we visited followed different policies when determining whether to refer allegations of abuse to law enforcement. As a result, law enforcement agencies were sometimes either not apprised of incidents or received referrals only after long delays. When referrals were made, criminal investigations and, thus, prosecutions were sometimes hampered because witnesses to the alleged abuse were unable or unwilling to testify. Delays in investigations, as well as in trials, reduced the likelihood of successful prosecutions because the memory of witnesses often deteriorated.
Safeguards to protect residents from potentially abusive individuals are insufficient at both the federal and state level. There is no federal statute requiring criminal background checks of nursing home employees nor does CMS require them. Although the three states we visited required background checks to screen potential nursing home employees, they do not necessarily include all nursing home employees nor are they always completed before an individual begins working. They also focus on individuals’ criminal records within the state where they are seeking employment. Safeguards at the state level are also insufficient. While nursing homes are responsible for protecting residents from abuse, survey agencies in the states we visited rarely recommended that certain sanctions-such as civil monetary penalties or terminations from federal programs-be imposed. Twenty-six homes were cited for deficiencies related to abuse from the 158 case files we reviewed. The survey agencies recommended a civil monetary penalty for 1 home, while the remaining 25 nursing homes faced less punitive sanctions such as a requirement to develop corrective action plans. State survey agencies also play a role in preventing homes from hiring potentially abusive caregivers through the states’ nurse aide registries. These registries, among other things, identify aides that have previously abused residents. A finding of abuse should prevent a home from hiring an aide. However, delays in making these determinations can limit the usefulness of these registries as a protective safeguard. In addition, findings of abuse for several nurse aides could not be found in one state’s Web-based registry, compromising its protective value. As a result, aides who the state survey agency had already determined had abused residents could have been hired by unsuspecting nursing homes. Finally, none of the three states we visited had a safeguard in place-similar to a nurse aide registry-to professionally discipline those nursing home employees who do not need certifications or licenses to perform their duties, such as maintenance or housekeeping personnel.
Delays in Reporting Abuse Preclude Immediate Response by Law Enforcement or Survey Authorities
Most of the local police departments in the three states we visited told us that they were seldom summoned to a nursing home following an alleged instance of abuse. Several police officials indicated that, when they were called, it was sometimes after others had begun investigating, potentially hindering law enforcement’s ability to conduct a thorough investigation. Instead, state survey agencies were typically notified of allegations of abuse. However, these notifications were frequently delayed. Allegations of abuse may not be reported immediately for a variety of factors, including reluctance to report abuse on the part of residents, family members, nursing home employees, and administrators. In addition, individuals who are unaware that state survey agencies have designated special telephone numbers as complaint intake lines may have difficulty identifying these numbers in telephone directories, which could also result in delays.
Police Not Immediately Notified of Abuse or Routinely Involved in Survey Agency Investigations
Victims of crimes ordinarily call the police to report instances of physical and sexual abuse, but when the victim is a nursing home resident, the police appear to be notified infrequently. Residents and family members are not required to notify local police of abusive incidents. Several police officials told us that, like any crime, police should be summoned as soon as the incident is discovered. However, police told us that when they do learn of an allegation of abuse involving a nursing home resident, it is sometimes after another entity, such as the state survey agency, has begun to investigate, thus hampering law enforcement’s evidence collection and limiting their investigations. Most of the police departments also indicated that they did not track reports of abuse allegations involving nursing home residents and thus did not have data on the number of such reports.
When residents and family members do report allegations of abuse, they may complain directly to the nursing home administrator rather than contact police. According to one long-term care ombudsman, resident and family members do not always view the abuse as a criminal matter. Nursing homes are usually not compelled to notify local law enforcement when they learn of such reports. There is no federal requirement that they contact police, although some states-including Pennsylvania-have instituted such a requirement. According to an Illinois state survey agency official, a similar requirement will go into effect in that state in March 2002.
Our discussions with officials from 19 local law enforcement agencies indicate that police are rarely called to investigate allegations of the abuse of nursing home residents. Besides infrequent contact from residents, family members, and nursing homes, officials from 15 of the 19 police departments we visited told us that they had little or no contact with survey agencies. Officials from several of these departments reported that they were unaware of the role state survey agencies play in investigating instances of resident abuse.
Abuse Allegations Not Immediately Reported to State Survey Agencies
Our review of 158 case files-mostly from 1999 and 2000-indicated state survey agencies were often not promptly notified of abuse allegations.14 While individuals filing complaints are not compelled to report allegations within a prescribed time frame, nursing homes in the states we visited are required to notify the state survey agency of abuse allegations the day they learn of the allegation or the following day. We found that both complaints from individuals and notifications from nursing homes are frequently submitted to survey agencies days, and sometimes weeks, after the abuse has taken place.
20 of the 31 complaint cases we could assess for promptness of submission contained allegations that were reported to the state survey agency 2 days or more after the abuse took place. Further, eight were reported more than 2 weeks after the alleged abuse occurred.
There were comparable delays in facilities’ notifications of alleged abuse to the state survey agencies. The three states we visited require that nursing homes notify them of instances of alleged abuse immediately- interpreted by survey agency officials in all three of the states to mean the day the facility learns of the abuse or the next day. As table 2 shows, however, only about half of the 111 nursing home notifications we could assess for promptness were submitted within the prescribed time frame. Delays in notifying survey agencies of abuse prevent the agencies from promptly investigating and ensuring that nursing homes are taking appropriate steps to protect residents. Residents may remain vulnerable to abuse until corrective action is taken.
Untimely Reporting Attributable to Multiple Factors
Allegations of abuse of nursing home residents may not be reported promptly for a variety of reasons. For example, a recent study found that nursing home staff may be skeptical that abuse occurred.15 Residents may also be afraid to report abuse because of fear of retribution, according to another study and two long-term care ombudsmen we met with.16 According to one law enforcement official, family members are sometimes fearful that the resident will be asked to leave the home and are troubled by the prospect of finding a new place for the resident to live. In addition, nursing home staff and management do not always report abuse promptly, despite requirements to do so. According to law enforcement and state survey agency officials, staff fear losing their jobs or facing recrimination from co-workers and nursing home management. Similarly, they also said that nursing home management is sometimes reluctant to risk adverse publicity or sanctions from the state.
We saw evidence of delayed reporting by family members, staff, and management in our file reviews, as illustrated by the following examples:
15Ann W. Burgess, Elizabeth B. Dowdell, and Robert A. Prentky, “Sexual Abuse of Nursing Home Residents,” Journal of Psychosocial Nursing, 38, no. 6 (June 2000).
16Paul D. Hodges, “National Law Enforcement Programs to Prevent, Detect, Investigate, and Prosecute Elder Abuse and Neglect in Health Care Facilities,” Journal of Elder Abuse and Neglect (1998).
We saw evidence of delayed reporting by family members, staff, and management in our file reviews, as illustrated by the following examples:
- A resident reported to a licensed practical nurse that she had been raped in the nursing home. Although the nurse recorded this information in the resident’s chart, she did not notify nursing home management. She also allegedly discouraged the resident from telling anyone else. Two months later the resident was admitted to a hospital for unrelated reasons and told hospital officials that she had been raped. It was not until hospital officials notified police of the resident’s complaint that an investigation was conducted. Investigators then discovered that the resident had also informed her daughter of the incident, but the daughter, apparently not believing her mother, had dismissed it. The resident later told police that she did not report the incident to other staff at the nursing home because she did not want to cause trouble. The case was closed because the resident could not describe the alleged perpetrator. However, the nurse was counseled about the need to immediately report such incidents.
- An aide, angry with a resident for soiling his bed, threw a pitcher of cold water on him and refused to clean him. Another aide witnessed the incident. Instead of informing management, the witness confided in a third employee, who reported the incident to the nursing home administrator 5 days after the abuse took place. The abusive aide was fired, and a finding of abuse was recorded in her nurse aide registry file.
- One nursing home employee witnessed an aide slap a resident; two other employees heard the incident. The aide denied the allegation, yet the resident developed redness, swelling, and bruising around her eye. The witnesses reported the matter to nursing home management, which investigated the situation and suspended the aide the next day. The aide was subsequently fired. However, the state survey agency was not notified of the incident by the home until 11 days after the abuse took place.
During our work we discovered that nursing home residents and family members who are prepared to report abuse to the state survey agency could encounter difficulty in identifying where to report a complaint of abuse, which can further delay reporting. For example, telephone books for Chicago and Peoria, Illinois, and Athens and Augusta, Georgia, did not include complaint telephone numbers. Although telephone books in Philadelphia and Pittsburgh, Pennsylvania, contained the correct numbers for the state survey agency’s offices, they did not identify the designated complaint number, making it difficult for an individual unfamiliar with the agency to recognize its telephone number as an appropriate place to report suspected abuse.
Individuals who are not already familiar with the state survey agency’s role and its complaint telephone line may encounter a confusing array of numbers both public and private in their local telephone directory. In the three states we visited we reviewed the government and consumer pages in nine telephone books and identified a wide variety of organizations, which, by their names, appeared capable of addressing complaints. However, many did not have the authority to do so. In this review, we identified 42 entities that appeared to be organizations where abuse could be reported and were not affiliated with the state survey agencies. Only six of these entities represented organizations-such as long-term care ombudsmen-that are capable of pursuing abuse allegations. The remaining 36 entities either could not be reached or could not accept complaints, despite having listings such as the “Senior Helpline.” Sometimes these entities attempted to refer us to a more appropriate organization, but with mixed success. For example, our calls in Georgia resulted in four correct referrals to the state survey agency’s designated complaint telephone line but also led to five incorrect referrals. Five other Georgia entities offered us no referrals.
To facilitate reporting, nursing homes are required to post the telephone numbers of complaint lines in a prominent location within the facility. State survey agencies are expected to verify that these numbers are properly displayed when they conduct their annual inspections and have the option of citing homes with deficiencies if they fail to do so. However, deficiency data compiled by CMS do not specifically identify the number of homes cited for failure to display these numbers, and so it is not readily apparent how often nursing homes do not comply with this specific requirement.
Despite its requirement that nursing homes post the complaint telephone numbers, CMS recognized that a greater awareness of how to report abuse was warranted and so, in 1998, it initiated an educational campaign regarding abuse prevention and detection in nursing homes. Because publicizing the appropriate telephone numbers for reporting abuse is critical, a key component of the campaign was the development of a poster to be used by nursing homes nationwide. According to a CMS official, the poster will identify several options for reporting abuse, including notifying nursing home management, local law enforcement, complaint telephone numbers, and CMS.17 In addition to displaying these numbers, the posters will feature removable cards-which individuals may retain-listing the organizations and telephone numbers contained on the poster. A pilot test of the poster was conducted in 1999. Based on feedback received from the pilot test, the poster was revised, but it has not been approved for distribution.
Abusive Nursing Home Staff Difficult to Prosecute
Relatively few prosecutions result from allegations of physical and sexual abuse of nursing home residents. We identified two impediments to the successful prosecution of employees who abuse nursing home residents. First, allegations of abuse were not always referred to local law enforcement or MFCUs. When referrals were made it was often days or weeks after the incident occurred, compromising the integrity of what limited evidence might have still been available. Second, a lack of witnesses to instances of abuse made prosecutions difficult and convictions unlikely.
Lack of Witnesses Reduce Likelihood of Successful Prosecutions
The lack of compelling evidence often precludes prosecution of those who have abused nursing home residents. MFCU and local law enforcement officials indicated that nursing home residents are often unwilling or unable to provide testimony. The state survey agency and law enforcement officials we spoke to agreed with this determination. Our file reviews confirmed that residents were reluctant or unable to provide evidence against an accused abuser in 32 of the 158 cases we reviewed, thus making it difficult to pursue a criminal investigation. Our work also indicated that resident testimony could be limited by mental impairments or an inability to communicate. We noted several instances in which residents sustained unexplained black eyes, lacerations, and fractures. However, despite the existence of serious injuries, investigators could neither rule out accidental injuries nor identify a perpetrator.
Prosecutions of individuals accused of abusing nursing home residents are often weakened by the time lapse between the incident and the trial. Law enforcement officials and prosecutors told us that the amount of time that elapses between an incident and a trial could ruin an otherwise successful case because witnesses do not always remember important details about the incident. Although it is not uncommon for the memories of witnesses in criminal cases to fade, impaired recall is even more prevalent among nursing home residents. Our review showed that nursing home residents may become incapable of testifying months after they were abused. For example, in one case, a victim’s roommate witnessed the abuse and positively identified the abuser during the investigation. However, by the time of the trial-nearly 5 months later-she could no longer identify the suspect in the courtroom, prompting the judge to dismiss the charges. Moreover, given the age and medical condition of many nursing home residents, many might not survive long enough to participate in a trial. One recent study of 20 sexually abused nursing home residents revealed that 11 died within 1 year of the abuse.20 Law enforcement officials told us that, without testimony from either a victim or a witness, conviction is unlikely.
Measures to Safeguard Residents from Abusive Employees Are Ineffective
The safeguards available to states do not sufficiently protect residents from abusive employees. CMS’s requirements preclude facilities from employing an individual convicted of abusing nursing home residents but permit the hiring of those convicted of other abusive acts, such as child abuse. Although some states have established more stringent requirements, criminal background checks typically do not identify individuals who have committed a crime in another state. Nursing homes can be cited for deficiencies if they fail to adequately protect residents from abuse, but these deficiencies rarely result in the imposition of sanctions, such as civil monetary penalties, by state survey agencies. State survey agencies, which also oversee the operation of state nurse aide registries, do not adequately ensure that residents will be protected from aides who previously abused residents. Finally, states are unable to take professional disciplinary actions against other employees, such as security guards or housekeeping staff, who may have abused residents but who are neither licensed nor certified to care for residents.
Employment Requirements and Background Checks Do Not Ensure Resident Protection
While nursing homes are required to establish policies that prevent the hiring of individuals who have been convicted of abusing nursing home residents, this requirement does not include offenses committed against individuals outside the nursing home setting, nor does it specify that states conduct background checks on all prospective employees. This requirement does not preclude individuals with similar convictions-such as assault, battery, and child abuse-from obtaining nursing home employment.
The three states we visited all apply a broader list of offenses that prohibit employment in a nursing home. Each state’s prohibition of employees includes those convicted of offenses such as kidnapping, murder, assault, battery, or forgery and is not limited to offenses against nursing home residents. However, the three states vary in their application of these prohibitions. For example, Illinois’s prohibition does not apply to employees who are not directly involved in providing care to residents and allows nurse aides who have been convicted of such offenses to apply for a waiver. Waivers may be granted if there are mitigating circumstances and allow these aides to work in nursing homes. Pennsylvania’s prohibition applies to all nursing home employees, not just those involved in patient care. Georgia’s prohibition, enacted in 2001, also applies to all nursing home employees, but only if they were convicted of abuse-related crimes within the preceding 10 years.
Criminal background checks do not adequately protect residents, in part, because, as in Illinois, they may not apply to all nursing home employees.21 More importantly, the background checks that are performed by state and local law enforcement officials in the three states we visited are typically only statewide. Consequently, individuals who have committed disqualifying crimes in one state may be able to obtain employment at a nursing home in another state.
Nationwide background checks on prospective nursing home employees can be performed by the Federal Bureau of Investigation (FBI) if nursing homes request them. These checks could identify offenses committed elsewhere, but not all states take advantage of this option. According to an FBI official, 21 states have requirements that subject some health care employees to these checks, but state requirements vary and do not always apply to prospective nursing home employees. This official told us that most of the requests the FBI receives on health care personnel are from these 21 states. He told us that, of the remaining states, only nursing homes in North Carolina and Ohio request such background checks regularly.22 Of the three states we visited, only Pennsylvania submits background check requests to the FBI. However, these are limited to those individuals who have lived outside the state during the 2 years prior to applying for nursing home employment.
Two of the states we visited allow employees to report for duty before background checks are completed. Pennsylvania23 and Illinois permit new employees to report to work before criminal background checks are completed, for up to 30 days and 3 months, respectively. However, Georgia survey agency officials told us that nursing homes could be cited with a deficiency if new employees assume their duties before the nursing home receives the results of the background checks. Georgia requires that these checks be completed within 3 days of the request.
CMS does not require that the results of criminal background checks be included in nurse aide registries. Of the three states we visited, only Illinois requires that the results be reported to the state survey agency by the nursing home.24 If the check reveals a disqualifying criminal history, it will be included in the Illinois registry. Therefore Illinois nursing homes are able to identify some aides with disqualifying convictions before offers of employment are made and criminal background checks are initiated. Officials in Georgia and Pennsylvania explained that they verify the completion of background checks for new employees, including nurse aides, as they conduct their periodic nursing home surveys. As a result, they told us that they do not believe that the results of these checks need to be added to their registries.
Nursing Homes Rarely Sanctioned for Improperly Responding to Abuse
For the states that we reviewed, sanctions were rarely imposed against nursing homes for deficiencies associated with their handling of instances of abuse. Deficiencies considered the most severe-those resulting in actual harm or immediate jeopardy to resident health or safety-could result in an immediate sanction, such as a civil monetary penalty. Deficiencies not resulting in actual harm or immediate jeopardy usually resulted in nursing homes being required to submit a plan of corrective action. Nursing homes that submit corrective action plans may also face other sanctions.
The Georgia, Illinois, and Pennsylvania survey agencies eventually cited 26 nursing homes-from the 158 cases we reviewed-for abuse-related deficiencies such as failing to report allegations of abuse in a timely manner or failing to properly investigate them, as well as inadequately screening employees for criminal backgrounds. The state survey agencies rarely recommended to CMS that civil monetary penalties be imposed against nursing homes for abuse-related deficiencies, primarily because most of the deficiencies cited for these 26 nursing homes were not categorized as placing residents’ health or safety in immediate jeopardy or resulting in actual harm to residents. Only 1 of these 26 facilities-in Illinois-was assessed a civil monetary penalty. However, the penalty was reduced on appeal. State survey agencies did not recommend other sanctions on the 25 remaining nursing homes.
Nursing Home Employees May Not Be Disciplined
Although nurse aides compose the largest proportion of nursing home employees, other employees, such as laundry aides, security guards, and maintenance workers have also been alleged to have abused residents. While survey agencies can prevent abusive aides from working in nursing homes and can refer licensed personnel, such as nurses and therapists, to state licensing boards for disciplinary action, they have no similar recourse against other abusive employees, who may continue to work in nursing homes. Survey agencies can, however, cite facilities for deficiencies if appropriate actions-such as reporting and investigating the allegations-are not taken.
Of the 158 cases of alleged physical and sexual abuse that we reviewed, 10 suspected perpetrators were employees who were not subject to licensing or certification requirements. None of the facilities in these cases were cited for deficiencies. Although there is no administrative process to enable the state to take actions against such employees, these employees could be criminally prosecuted. Of these 10 cases, 4 involved allegations that proved unfounded or for which evidence was inconsistent. One of the 10 employees ultimately pled guilty in court. Three others were investigated by law enforcement but were not prosecuted.29 The remaining 2 employees were terminated by their nursing homes but were not the subject of criminal investigations.30
Nursing homes are entrusted with the well-being and safety of their residents yet considerable attention has recently been focused on the inadequacies of care provided to many nursing home residents. Along with receiving quality care, residents are entitled to be protected from those who would harm them. Residents who are abused need to be assured that their allegations will be immediately referred to the proper authorities and investigated expeditiously. In addition, law enforcement authorities need to ensure that abusive individuals are prosecuted when appropriate, and survey agencies should recommend to CMS that available administrative sanctions be imposed against known abusers.
Our work shows that nursing home residents need both stronger and more immediate protections. Law enforcement agencies, such as state MFCUs or local police departments, are not involved as often or as soon as they should be, especially when there are indications of potential criminal activity. Additionally, determining where to report complaints of alleged abuse can be confusing. Prompt reporting is especially crucial given the often-limited evidence available.
CMS is taking important steps that may better protect residents. For example, its feasibility study on the development of a national abuse registry could lead to enhanced resident safety. However, other efforts have fallen short. For example, an important tool could be the agency’s educational campaign using a new poster in nursing homes nationwide to better inform residents and family members about how to report abuse. However, the poster has been under development for more than 3 years.
More should be done to protect nursing home residents. CMS’s requirement that nursing homes not employ individuals convicted of abusing residents does not sufficiently prevent the hiring of potentially abusive individuals. Those who have committed similar offenses, such as child abuse, are eligible to work in nursing homes unless states impose a more stringent requirement. While CMS does not require criminal background checks, some states have instituted them. However, they may not be required for all prospective employees and may not identify offenses committed in other states. In addition, CMS’s definition of abuse is not sufficiently detailed to ensure that all states report every incident that CMS would consider abusive. Affording due process to nurse aides who have allegedly abused residents is important and necessary. However, determinations that nurse aides have been abusive can be time-consuming, leaving residents at risk if these aides continue to work in nursing homes. Finally, nurse aide registries may have incorrect information, allowing nursing homes to hire aides previously found abusive.