## LongTerm Care Ombudsman Annual Report: Fiscal Year 1995

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## Part III. Casesand Complaints 

Receiving, investigating and resolving complaints made by, oron behalf of, residents is at the heart of the Long-Term CareOmbudsman Program's mission. The following are examples of thetypes of complaints ombudsmen investigate and help resolve: 

> 
**California** - An anonymous caller to the Ombudsman    Program alleged that a frail, elderly female resident of a    San Fernando Valley board and care home was being    over-medicated with an unprescribed psycho-tropic drug with    intent to cause her death. The ombudsman went to the facility    and found the resident in a catatonic state. The ombudsman    contacted local law enforcement, Adult Protective Services    and an ambulance service; the resident was transferred to an    acute emergency center for respiratory failure. Further    investigation revealed an intricate conspiracy between the    owner of the facility, an ex-son-in-law, and a treating    physician. The Ombudsman Program played a significant role in    pulling all of the investigatory forces together and    collecting information that ultimately lead to a criminal    conviction of the guilty parties. 

> 
**Florida** - A relative questioned charges to Medicare    of over $1000 for an "anti-contracture" device for    his parent, who lived in a nursing home. The ombudsman went    to the facility and found that a "Dr. A" had    visited the facility and ordered such brace devices for    almost all of the 90 residents. The contraptions were stored    in residents' closets; they didn't help any of the frail,    sick people they were given to; and in many cases they caused    pain and skin abrasions. The ombudsman reported her suspicion    of massive Medicare fraud to the appropriate authorities,    providing documentation of what she had observed at the    facility. "Dr. A" was ultimately convicted of    organized fraud in several facilities; sentenced to six    months in the Palm Beach County jail, followed by two years    of community control; and ordered to pay $71,000 in    restitution to the state's Agency for Health Care    Administration, a $10,000 fine and $25,000 in investigative    costs. 

> 
**Indiana**— A nursing home resident wished to    transfer to another facility where her sister resided. The    home in which the resident lived opposed the transfer,    apparently because its census was down. Although arrangements    had been made for the move, the home intimidated the    resident, and she was afraid to leave. She appealed to the    ombudsman for assistance. After investigating the situation,    the ombudsman remained with the resident throughout the    transfer process, assuring that the resident's right to    transfer was respected. Following up on the case later, the    ombudsman found the resident doing well and eating lunch    daily with her sister and another sister who lives in the    community. 

As in previous years, the program was very successful infulfilling its complaint investigation/resolution mission in FY1995: about 75% of complaints were resolved or partiallyresolved. 

Over 85% of these complaints related to nursing homeresidents; almost all of the remainder related to board and careresidents, and a small number related to individuals living innon-institutional settings. Although the need for ombudsmanservices in board and care and similar facilities is as great asin nursing facilities, and this level of care has aboutone-fourth of the total long term care facility beds, lack ofresources reduces the ability of ombudsmen to serve residents ofthese facilities. 

An important feature of the new ombudsman reporting system isthe institution of national definitions for terms used inombudsman complaint work, including "case,""complainant," "complaint," "closedcase," "verified" and "resolved." Thesedefinitions are provided at the end of this section, on page 29. 

As discussed in Part I, for FY 1995 the national total (asreported by all 52 ombudsman programs) was 

**218,455 complaints** filed by **162,338complainants**. 

A state-by-state breakdown of these totals is in Table A-1.For FY 1995, states were afforded an option of providing all ofthe NORS data, or only modified data. Twenty-nine states providedmost of the NORS case and complaint data. Findings from this dataare discussed below. Findings from the remaining 23 state reportsare discussed on page . 

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### **NORS Caseand Complaint Data**

**Types of Facilities/Settings**

Most of the complaints received by the ombudsmen concernednursing facilities, specifically: 

- 86.7% pertained to nursing facilities 
- 12.3% pertained to board and care and similar facilities 

1% pertained to problems of individuals living in othersettings [ This percentage was inflated by Ohio's figures, whichincluded in non-facility setting categories complaints which were"not against the facility" but may have actuallyinvolved a resident of a facility. This is an example ofdiscrepancies which occur due to the transition fromstate-specific reporting systems to the national NORS system.](home, hospital, hospice, etc.) 

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### **Types ofComplainants**

For all facilities/settings, most complaints inthe 28 states which provided this breakdown came from residentsthemselves, followed by their relatives and friends, ombudsmen,facility administration and staff and other types ofcomplainants. Table 4 shows the total statistics. Thestate-by-state data are found in Table A2A-2H. 

| **Table 4****: Types        of Complainants for Cases Closed—FY 1995        For 28 States** |
|--------------------------------------------------------------------------------------------------|
| ****                                                                                             | **All        Facilities/ Settings** | **Nursing        Facilities** | **Board        & Care/Other Similar** | **Other        Settings** |
| **Total Complainants**                                                                           | 54,305 | 47,343 | 6,145 | 817 |
| **Resident**                                                                                     | 29.14% | 30.02% | 23.24% | 22.03% |
| **Relative/ Friend**                                                                             | 26.28% | 26.96% | 19.38% | 39.29% |
| **Non-Relative        Guardian, Legal Representative**                                           | 1.12% | 1.08% | 1.29% | 1.96% |
| **Ombudsman, Ombudsman        Volunteer**                                                        | 18.68% | 17.85% | 27.29% | 2.20% |
| **Facility        Administration, Staff**                                                        | 16.61% | 17.18% | 11.80% | 19.71 % |
| **Other Medical:        Physician/ Staff**                                                       | 1.31% | 1.03% | 3.21% | 3.18% |
| **Other Agency        Representative**                                                           | 2.61% | 2.03% | 6.43% | 7.83% |
| **Unknown/Anonymous**                                                                            | 3.03% | 2.82% | 4.65% | 2.69% |
| **Other**                                                                                        | 1.22% | 1.02% | 2.72% | 1.10% |

High numbers of complaints from both residents and ombudsmenreflect the importance of ombudsman presence in facilities, whichis corroborated by volunteer and facility visitation dataprovided in Tables A-11. 

Figure 3 below displays the percentages of types ofcomplainants by type of facility. 

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### **Types ofComplaints**

The new NORS systems allows the collection of detailedinformation about the types of problems ombudsmen are called uponto investigate. There are 128 specific complaint categories fornursing homes and board and care/similar homes; complaints forother settings are categorized by the type of setting. Thesespecific categories are organized by groups and sub-groups asindicated in Table 5, which also provides totals of complaintswhich the 29 NORS states reported for the 16 broad headings.Figure 5 on the next page displays the distribution of complaintsby the major groups. 

### Figure 3: Types ofComplainants for Cases Closed—FY 1995 

(For 28 states) 

| **Table 5****:        Number of Complaints by Group—Fiscal Year 1995        for 29 states providing full data** |
|----------------------------------------------------------------------------------------------------------------------|
| **Groups**                                                                                                           | **Sub-Groups** | **Nursing        Facilities** | **Board        & Care (or Similar)** |
| **Total        Complaints**                                                                                          | **82,442** | **11,716** |
| **Residents'        Rights**                                                                                         | **Total** | **24,587** | **3,712** |
| A. Abuse, Gross Neglect,        Exploitation                                                                         | 6,128 | 915 |
| B . Access to Information                                                                                            | 1455 | 189 |
| C. Admission, Transfer,        Discharge, Eviction                                                                   | 4,533 | 565 |
| D. Autonomy, Choice,        Exercise of Rights, Privacy                                                              | 7,978 | 1,247 |
| E. Financial, Property        (Except for Financial Exploitation)                                                    | 4,493 | 796 |
| **Resident        Care**                                                                                             | **Total** | **25,945** | **2,243** |
| F. Care                                                                                                              | 21,592 | 1,815 |
| G. Rehabilitation or        Maintenance of Function                                                                  | 3,226 | 222 |
| H. Restraints—Chemical        & Physical                                                                    | 1,127 | 206 |
| **Quality        of Life**                                                                                           | **Total** | **17,780** | **3,354** |
| I. Activities & Social        Services                                                                           | 2,890 | 369 |
| J. Dietary                                                                                                           | 6,994 | 1,229 |
| K. Environment                                                                                                       | 7,896 | 1,756 |
| **Administration**                                                                                                   | **Total** | **7,747** | **1,285** |
| L. Policies, Procedures,        Attitudes, Resources                                                                 | 1,420 | 570 |
| M. Staffing                                                                                                          | 6,327 | 715 |
| **Not        Against Facility**                                                                                      | **Total** | **6,383** | **1,122** |
| N. Certification/ Licensing        Agency                                                                            | 175 | 39 |
| O. State Medicaid Agency                                                                                             | 690 | 66 |
| P. System/Others                                                                                                     | 5,518 | 1,017 |

 

### **Figure 4****:Distribution of Complaints by Group—FY 1995**[ For 29 states providing full data.] 

(Note: Table 6 is omitted from the web versionof this document.)

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### **For Nursingand Board & Care Facilities**

Although the name of the specific 128 categories oftendescribes the nature of a complaint, the categories were notintended to describe what the problem is; they simply state thearea in which there is a problem. (Narrative descriptions of thetypes of problems many residents experienced are provided in PartV: Major Long Term Care Issues.) 

In FY 1995, 29 states provided detailed complaint data.Analysis of these data indicated that the top 20 complaintcategories for both nursing and board and care/similar facilitiescover approximately 50% of all complaints received in theirrespective facility types. Table 7 shows these 40 complaintcategories, the percent of the complaints they represented, andcumulative percentages for each type of facility. (Please notethat these cumulative percentage totals refer to all complaintslisted to that point, not to a single individual category (exceptfor the first category listed). 

| **Table 7****: Most        Frequently Received Complaints—FY 1995        (Top 20, approximately 50% of the total)        (For 29 States Using NORS Complaint Categories)** |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| **Nursing        Facilities**                                                                                                                                                   | **Board        and Care/Similar Facilities** |
| **Group/Category                Groups defined in Table 5 above**                                                                                                               | **% of        Total** | **Cumu-        lative %** | **Group/Category                Groups defined in Table 5 above** | **% of        Total** | **Cumu-        lative %** |
| F40 Accidents, improper        handling                                                                                                                                         | 3.9% | 3.9% | J71 Menu-quantity, quality,        variation, choice | 6.0% | 6.0% |
| D26 Dignity, respect-staff        attitudes                                                                                                                                     | 3.8% | 7.6% | K79 Equipment/building-        disrepair, hazard, poor lighting, fire safety | 3.9% | 9.9% |
| J71 Menu-quantity, quality,        variation, choice                                                                                                                            | 3.7% | 11.3% | F44        Medications-administration, organization | 3.6% | 13.5% |
| F45 Personal hygiene                                                                                                                                                            | 3.7% | 15.0% | D26 Dignity, respect-staff        attitudes | 3.4% | 16.9% |
| F41 Call lights, requests        for assistance                                                                                                                                 | 3.4% | 18.4% | K78 Cleanliness, pests | 3.0% | 19.9% |
| F42 Care plan/resident        assessment                                                                                                                                        | 3.4% | 21.8% | F45 Personal hygiene | 2.9% | 22.8% |
| M97 Shortage of staff                                                                                                                                                           | 3.0% | 24.9% | C19        Discharge/eviction-planning, notice, procedure | 2.7% | 25.5% |
| C19 Discharge/eviction-        planning, notice, procedure                                                                                                                      | 2.7% | 27.6% | E37 Personal funds-        mismanaged, access denied, deposits & other money not        returned | 2.6% | 28.1% |
| E38 Personal property lost,        stolen, used by others, destroyed                                                                                                            | 2.7% | 30.3% | A3 Verbal/mental abuse | 2.1% | 30.2% |
| F48 Symptoms unattended, no        notice to others of change in condition                                                                                                      | 2.4% | 32.6% | A1 Physical abuse | 2.1% | 32.3% |
| F52 Other: Care                                                                                                                                                                 | 2.3% | 34.9% | E36 Billing/charges notice,        approval, questionable, accounting wrong or denied | 2.1% | 34.4% |
| A1 Physical abuse                                                                                                                                                               | 2.2% | 37.2% | K77 Air temperature, and        quality | 1.9% | 36.3% |
| F44        Medications-administration, organization                                                                                                                             | 2.1% | 39.3% | P128 Other: System/Others | 1.9% | 38.2% |
| K78 Cleanliness, pests                                                                                                                                                          | 1.7% | 41.0% | K86 Other: Environment | 1.8% | 40.0% |
| P120 Family conflict                                                                                                                                                            | 1.7% | 42.7% | M97 Shortage of staff | 1.7% | 41.7% |
| E36 Billing/charges notice,        approval, questionable, accounting wrong or denied                                                                                           | 1.6% | 44.2% | L93 Offering inappropriate        level of care | 1.7% | 43.4% |
| K83 Odors                                                                                                                                                                       | 1.5% | 45.7% | E38 Personal property lost,        stolen, used by others, destroyed | 1.6% | 45.0% |
| I66 Roommate conflict                                                                                                                                                           | 1.4% | 47.1% | D27 Exercise choice and/or        civil rights | 1.6% | 46.6% |
| P122 Legal-guardianship,        conservatorship, power of attorney, wills                                                                                                       | 1.4% | 48.5% | P122 Legal-guardianship,        conservatorship, power of attorney, wills | 1.6% | 48.2% |
| M100 Staff unresponsive,        unavailable                                                                                                                                     | 1.4% | 49.9% | K83 Odors | 1.5% | 49.8% |

Tables A-3A through A-4D provide the percentages of complaintswhich fell into each of these groups and sub-groups, by type offacility. 

Tables B-2 through B-10 (Appendix B) provide detailedinformation on specific complaints documented by the states andnational and state rankings, by order of frequency, for each typeof complaint. 

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### **ComplaintVerification and Disposition**

Two of the most important changes implemented in the newreporting system were: 

- a definition of "verified" (see page ) and        collection of data on complaint verification and 
- a system of categories for documenting what actually        happens with complaints after they are investigated; in        order to close a case, each problem (complaint)        identified in the course of working the case must be        accounted for in one — and only one — of eight        possible ways. 

In their work to develop the NORS, ombudsmen emphasized thatlack of proof that an alleged incident occurred does not meanthat it did not occur and/or is not a valid concern; and theyinvestigate and work to resolve all complaints, whether or notthey can be verified. 

Every complaint (problem) handled as part of a case is codedwith the outcome which best describes the disposition of theproblem. If a problem is referred to another agency for action,the ombudsman program tracks it and documents the final outcomewith one of the disposition codes; however, a very smallpercentage of complaints are referred and the other agency failsto act on it, or, for a variety of reasons, a report of the finaldisposition is not obtained from the other agency. As shown inTable 8, the NORS system includes a code for such complaints. 

The following verification and dispositionfigures are for the 29 states which provided this information inFY 1995. 

| **Table 8****:        Complaint Verification and Disposition—FY 1995         (for 29 states providing full data)** |
|-------------------------------------------------------------------------------------------------------------------------|
| **Total Complaints: 93,1205**                                                                                           |
| **Complaints        Verified**                                                                                          | **72.38%** |
| **Disposition**                                                                                                         |
| **Requires        Government Policy or regulatory change or legislative        action to resolve.**                     | 1.06% |
| **Not        resolved to the satisfaction of resident or complainant**                                                  | 7.79% |
| **Withdrawn        by resident or complainant**                                                                         | 4.47% |
| **Referred        to other agency for resolution, and**                                                                 | **Report        of final disposition not obtained** | 4.75% |
| **Other        agency failed to act on complaint**                                                                      | 0.63% |
| **No        action needed or appropriate**                                                                              | 10.17% |
| **Partially        resolved but some problem remained**                                                                 | 11.09% |
| **Resolved to satisfaction of        resident or complainant**                                                          | **60.06%** |

[For FY 1995, for some states, there are discrepancies betweentotals of complaints received and totals of complaints documentedfor verification and disposition. Since states only reportcomplaints on closed cases for the national report, eachcomplaint documented should be accounted for in a dispositioncategory, and the grand totals should be the same number. Thediscrepancy in FY 1995 is due to the transition from the oldreporting system to the new system.] 

The bar graph below (Figure 5) displays the percentages inTable 8. State-by-state verification and disposition informationby type of facility/setting is found in Table A-5A and A-5B. 

### **Figure 5****:Disposition of Complaints by Outcome—FY1995****(For 29 states providing full data)**

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### **Complaint/CaseData for the Remaining 23 States**

The states which did not use the NORS system in FY 1995reported a total of 102,782 complainants and 123,341 complaints,of which 77% were resolved or partially resolved. (These statesused a modified version of the previous reporting system.) Ahigher complaint resolution rate for the non-NORS states than forthe NORS states is due to the more refined system of documentingoutcomes in the NORS system, as discussed above. 

Eighty-two percent of the complaints concerned nursingfacilities; 10% concerned board and care or similar facilities;4% concerned "other" and 1% concerned regulatory orreimbursement agencies. A state-by-state breakdown is provided inTable A-6. 

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### **ComplaintDescription**

States were invited, as an optional response, to give a shortdescription of the most interesting and/or significant individualcomplaint their program worked on during the reporting period.These descriptions are summarized in Appendix C. 

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### **LegalConsultation on Complaints**

Eight states [Those states which chose to provide this moreextensive information were Alabama, Arkansas, Louisiana,Missouri, Montana, Puerto Rico, Ohio, and West Virginia.]responded to an optional question regarding their need for anduse of legal expertise. They indicated that legal consultationwas needed, and utilized if available, on complaints involving: 

- Medicaid denial and appeals; 
- Inappropriate nursing home discharges; 
- Legal authority and mechanisms for decision-making; 
- Advance directives not being honored by a nursing        facility; 
- Residents' rights; 
- Interpretation of state law (for instance, a nursing home        administrator being included in the will of a resident        who died); 
- Conversion of funds from a resident to the individual        holding their power of attorney; and 
- Conflict over guardianships/conservatorships 

Additional information on legal consultation on complaints isin Appendix C. 

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### **Definitionsof Terms Used in Part III**

Distinguishing between "complainant,""case," and "complaint" is one of the mostimportant features of the NORS. 

**"Case"** is generally equivalent to thecategory in the pre-NORS reporting system "number of peoplepresenting complaints" and is defined as: 

> 
Each inquiry brought to, or initiated by, the ombudsman on    behalf of a resident or group of residents involving one or    more complaints or problems which requires opening of a case    file and includes ombudsman investigation, fact gathering,    setting of objectives and/or strategy to resolve, and    follow-up. 

**"Complaint" is** defined as: 

> 
A concern brought to, or initiated by, the ombudsman for    investigation and action by or on behalf of one or more    residents of a long-term care facility relating to health,    safety, welfare or rights of a resident. One or more    complaints constitute a case. 

Except for one element, "number of cases    opened," all case and complaint data which states submit    at the close of a fiscal year under the NORS are supposed to    be for closed cases only. The rationale for this is that all    the types of problems (complaints) involved in a case and the    disposition of each complaint is not known until a case has    been investigated and all complaints acted upon in some way. 

**"Closed case"** is defined as follows: 

> 
Ombudsman activity on a case has stopped for any of the    following reasons: 1) resolution or partial resolution; 2) by    request of complainant; 3) complaint(s) unresolvable; 4)    complaint(s) not verified; 5) resident died and no further    investigation was required; or 6) complaint(s) referred to    other agency for resolution and final disposition was not    obtained and/or reported to ombudsman. 

**"Verified"**means 

> 
It is determined after work (interviews, record    inspection, observation, etc.) that the circumstances    described in the complaint are substantiated or generally    accurate. 

**"Resolved"**means: 

> 
The complaint/problem was addressed to the satisfaction of    the resident or complainant 

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For questions about the LTC Ombudsman Program, contact Sue WheatonHypertext conversion by Saadia Greenberg,June 25, 1997