Nursing Homes: More Can Be Done to Protect Residents from Abuse
Released: 2002-03-05T00:00:00

Letter

Background

Experts who have conducted studies on the issue of physical and sexual abuse of nursing home residents have reported that it is a serious problem with potentially devastating consequences. Nursing home residents have suffered serious injuries or, in some cases, have died as a result of abuse. Nursing homes are required to protect their residents from harm by training staff to provide proper care and by prohibiting abusive behavior.

The vast majority of nursing homes participate in the Medicare and Medicaid programs and were projected to have received about $58.4 billion from the programs in 2001 for their care. State survey agencies—such as Georgia’s Department of Human Resources, Illinois’s Department of Public Health, and Pennsylvania’s Department of Health— perform surveys at least every 15 months to assess nursing homes’ compliance with federal and state laws and regulations. These surveys are designed to determine whether nursing homes are complying with Medicare and Medicaid standards. Nursing homes found to be out of compliance are cited with deficiencies, which can result in monetary penalties or other enforcement actions, including termination from federal programs, depending on their severity.

In addition to periodic surveys, state survey agencies investigate complaints of inadequate care, including allegations of physical or sexual abuse. CMS requires that states designate a specific telephone number for reporting complaints and that all nursing homes publicize these numbers.

Complaints can be submitted by residents, family members, friends, physicians, and nursing home staff. In addition, advocates of nursing home residents, such as long-term care ombudsmen, may file complaints.When state survey agencies receive these complaints they are responsible for investigating all allegations, determining if abuse occurred, and identifying appropriate corrective actions.

CMS requires nursing home officials to notify the state survey agency of allegations of abuse in their facilities immediately. Nursing homes are also required to conduct their own investigations and submit their findings in written reports to the state survey agency within 5 working days of the incident. Depending on the severity of the circumstances, the state survey agency may visit the nursing home to investigate the incident or wait until the nursing home submits its report. Depending on the content of the facility’s report, the survey agency may request the home to conduct additional work or the agency may investigate further on its own. If the agency opts not to investigate further, it may still review the manner in which the home conducted its investigation during the agency’s next scheduled survey of the home.

To protect residents from potentially abusive personnel, nursing homes must adhere to federal and state requirements concerning hiring practices. CMS’s regulations require that facilities establish policies prohibiting employment of all individuals convicted of abusing nursing home residents. Although there is no CMS requirement to do so, the three states we visited require nursing homes to conduct criminal background checks on some or all prospective employees. All nursing homes must also verify with the relevant state board of licensing the professional credentials of the licensed personnel, such as registered nurses (RN), they hire.

In nursing homes, the primary caregivers are nurse aides. According to federal law, each state must maintain a registry of all individuals who have satisfactorily completed an approved nurse aide training and competency evaluation program in that state. Before employing an aide, nursing homes are required to check the registry to verify that the aide has passed a competency evaluation.Aides whose names are not included on a state’s registry may work at a nursing home for up to 4 months to complete their training and pass a state administered competency evaluation.

CMS requires that if a state survey agency determines that a nurse aide is responsible for abuse, neglect, or theft of a resident’s property, this “finding” must be added to the state’s nurse aide registry. The inclusion of such a finding on a nurse aide’s record constitutes a ban on nursing home employment. As a matter of due process, nurse aides have a right to request a hearing to rebut the allegations against them, to be represented by an attorney, and to appeal an unfavorable outcome. State survey agencies are not responsible for disciplining other nursing home professionals, such as RNs, who are suspected of abuse. Such personnel are referred to their respective state licensing boards for review and possible disciplinary action.

Local police departments may learn of suspected instances of resident abuse and conduct criminal investigations. In addition, state survey agencies may notify the state MFCU to pursue these allegations. States were provided financial incentives to establish MFCUs as a result of the enactment of the Medicare-Medicaid Anti-Fraud and Abuse Amendments to the Social Security Act of 1977. Although one of their primary missions is to investigate financial fraud and abuse in the Medicare and Medicaid programs, MFCUs also have authority to investigate the physical and sexual abuse of nursing home residents. MFCUs typically learn of such allegations by receiving referrals from state survey agencies. If, after investigating an allegation, the MFCU decides that there is sufficient evidence to press criminal charges, it may prosecute the case itself or refer the matter to the state’s attorney general or a local prosecutor.

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.While individuals filing complaints are not compelled to report allegations within a prescribed time frame, nursing homes in the states we visited are required to notify the state survey agency of abuse allegations the day they learn of the allegation or the following day. We found that both complaints from individuals and notifications from nursing homes are frequently submitted to survey agencies days, and sometimes weeks, after the abuse has taken place.

As table 1 shows, 20 of the 31 complaint cases we could assess for promptness of submission contained allegations that were reported to the state survey agency 2 days or more after the abuse took place. Further, eight were reported more than 2 weeks after the alleged abuse occurred.

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. 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.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:

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. 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.

States’ Policies Regarding Referrals to Law Enforcement Varied and Limited Prosecutions

Each of the states we visited had a different policy for referring instances of suspected abuse to law enforcement officials. While Illinois and Georgia both relied on their MFCUs to pursue criminal investigations concerning resident abuse, they followed different policies. Our review of case files in Illinois showed that the state survey agency consistently referred all reports of physical and sexual abuse—regardless of whether they were complaints or incident reports—to the MFCU, which in turn determined whether to open an investigation. As a result, the Illinois MFCU appeared to play a substantial role in abuse investigations. On the other hand, the Georgia survey agency evaluated each allegation and selectively referred cases to its MFCU according to a mutually agreed upon procedure. In accordance with this procedure, the survey agency screened complaints and incident reports before making referrals to its MFCU based on an assessment of the severity of the allegations or circumstances. Survey agency officials also told us that, in making these assessments, they considered the likelihood that reporting the abuse to the MFCU would result in a criminal conviction.

The differences in Illinois’s and Georgia’s referral policies yielded dramatically different results. While the Illinois survey agency referred approximately 300 allegations of abuse to its MFCU in 1999, Georgia only referred 27 allegations in the same period. Although Illinois had more than twice as many nursing home residents as Georgia—81,500 vs. 33,800—the discrepancy in population size does not account for the significant difference in the number of referrals. Our review of the 50 Illinois cases revealed that the Illinois survey agency referred cases to its MFCU earlier than the Georgia survey agency. The Illinois cases were referred to the MFCU, on average, 3 days after receiving a report of abuse, while Georgia referred cases, on average, 15 days after learning about an allegation. Illinois’s policy of routinely referring all allegations to its MFCU enables referrals to be made more quickly than Georgia’s system of evaluating and screening all allegations prior to making selective referrals.

The state survey agencies in Illinois and Georgia referred 64 of the cases we reviewed to the MFCUs for investigation. As indicated in table 3, Georgia, which referred fewer cases to its MFCU, had fewer convictions. By referring more cases to its MFCU, the Illinois survey agency presented law enforcement with the opportunity to assess whether an abusive act had been committed and whether it should be criminally pursued. In addition, by referring its cases to its MFCU sooner, on average, than Georgia, Illinois also enhanced law enforcement’s ability to conduct more timely and effective investigations. The Georgia survey agency’s screening process provided law enforcement fewer and less timely opportunities to investigate allegedly abusive caregivers.

In discussing Georgia’s referral policy with survey agency and MFCU officials, we learned that the agency substantially changed its MFCU referral criteria in 2000, leading to an increased number of referrals— 111—that year. This change followed a new understanding between survey agency and MFCU officials based on the MFCU’s expressed willingness to investigate instances of abuse. Previously, the survey agency typically did not refer instances that it considered less serious—such as incidents involving nursing home employees slapping residents with no reported visible injuries—to the MFCU. According to survey agency officials, they did not refer such allegations because they believed that these cases did not meet the referral criteria. In their view, it was unlikely that the MFCU would consider such acts serious enough offenses to warrant an investigation and prosecution.

Lack of Witnesses Reduce Likelihood of Successful Prosecutions

The lack of compelling evidence often precludes prosecution of those who have abused nursing home residents. MFCU and local law enforcement officials indicated that nursing home residents are often unwilling or unable to provide testimony. The state survey agency and law enforcement officials we spoke to agreed with this determination. Our file reviews confirmed that residents were reluctant or unable to provide evidence against an accused abuser in 32 of the 158 cases we reviewed, thus making it difficult to pursue a criminal investigation. Our work also indicated that resident testimony could be limited by mental impairments or an inability to communicate. We noted several instances in which residents sustained unexplained black eyes, lacerations, and fractures. However, despite the existence of serious injuries, investigators could neither rule out accidental injuries nor identify a perpetrator.

Prosecutions of individuals accused of abusing nursing home residents are often weakened by the time lapse between the incident and the trial. Law enforcement officials and prosecutors told us that the amount of time that elapses between an incident and a trial could ruin an otherwise successful case because witnesses do not always remember important details about the incident. Although it is not uncommon for the memories of witnesses in criminal cases to fade, impaired recall is even more prevalent among nursing home residents. Our review showed that nursing home residents may become incapable of testifying months after they were abused. For example, in one case, a victim’s roommate witnessed the abuse and positively identified the abuser during the investigation. However, by the time of the trial—nearly 5 months later—she could no longer identify the suspect in the courtroom, prompting the judge to dismiss the charges. Moreover, given the age and medical condition of many nursing home residents, many might not survive long enough to participate in a trial. One recent study of 20 sexually abused nursing home residents revealed that 11 died within 1 year of the abuse. Law enforcement officials told us that, without testimony from either a victim or a witness, conviction is unlikely.

Measures to Safeguard Residents from Abusive Employees Are Ineffective

The safeguards available to states do not sufficiently protect residents from abusive employees. CMS’s requirements preclude facilities from employing an individual convicted of abusing nursing home residents but permit the hiring of those convicted of other abusive acts, such as child abuse. Although some states have established more stringent requirements, criminal background checks typically do not identify individuals who have committed a crime in another state. Nursing homes can be cited for deficiencies if they fail to adequately protect residents from abuse, but these deficiencies rarely result in the imposition of sanctions, such as civil monetary penalties, by state survey agencies. State survey agencies, which also oversee the operation of state nurse aide registries, do not adequately ensure that residents will be protected from aides who previously abused residents. Finally, states are unable to take professional disciplinary actions against other employees, such as security guards or housekeeping staff, who may have abused residents but who are neither licensed nor certified to care for residents.

CMS Employment Requirements and Background Checks Do Not Ensure Resident Protection

While CMS requires nursing homes to establish policies that prevent the hiring of individuals who have been convicted of abusing nursing home residents, this requirement does not include offenses committed against individuals outside the nursing home setting, nor does it specify that states conduct background checks on all prospective employees. CMS’s requirement does not preclude individuals with similar convictions—such 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.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. 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. Pennsylvania 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. 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, as indicated in table 4.

The state survey agencies rarely recommended to CMS that civil monetary penalties be imposed against nursing homes for abuse-related deficiencies, primarily because most of the deficiencies cited for these 26 nursing homes were not categorized as placing residents’ health or safety in immediate jeopardy or resulting in actual harm to residents. Only 1 of these 26 facilities—in Illinois—was assessed a civil monetary penalty. However, the penalty was reduced on appeal. State survey agencies did not recommend other sanctions on the 25 remaining nursing homes.

Nurse Aide Registries Do Not Ensure Resident Protection

We found that allegedly abusive nurse aides received different treatment depending on the state in which they worked. In addition, when states determined that aides were abusive, there were frequent and long delays in the inclusion of this information in their registry files. Residents could have been exposed to abusive individuals while their cases were pending.

Finally, we found that one state’s Web-based nurse aide registry lacked complete information on aides who had been found to be abusive.

Inconsistent Treatment of Nurse Aides Poses Risks to Nursing Home Residents

CMS defines abuse as the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. CMS officials told us that states may use different definitions so long as they are at least as broad as the CMS definition.While the three states we visited have definitions that appear at least as broad as the CMS definition, variations in the way these states interpret or apply their definitions affect whether aides’ actions are reflected in state registries.

For example, the Georgia definition is very similar to CMS’s and defines abuse to include, among other things, the “willful infliction of physical pain, physical injury, mental anguish.” Officials there told us, however, that in order to add a finding of abuse to an aide’s registry file, they must be convinced that the aides’ actions were intentional. They are less likely to determine that an aide has been abusive if the aide’s behavior appeared to be spontaneous or the result of a “reflex” response. Officials said they would view an instance in which an aide struck a combative resident in retaliation after being slapped by the resident as an unfortunate reflex response rather than an act of abuse.

Similarly, Pennsylvania defines abuse to include, among other things, “infliction of injury . . . or intimidation or punishment with resulting physical harm, pain or mental anguish.” While this definition appears to be at least as broad as the CMS definition, Pennsylvania officials told us that they would be unlikely to annotate an aide’s registry file to reflect a finding of abuse unless the aide caused serious injury or obvious pain. Our review of Pennsylvania files indicated that most of the aides that were found to have been abusive had, in fact, clearly injured residents or caused them obvious pain. However, these files also indicated that in several instances in which residents were bumped or slapped and indicated that they were in pain as the result of aides’ actions, the survey agency decided not to take action because the residents had no physical injuries. As in Georgia, agency officials indicated that they needed to establish that the action was intentional.

In contrast, Illinois defines abuse as “any physical . . . or mental injury inflicted on a resident other than by accidental means.” Incidents like those not reported to registries in Georgia or Pennsylvania—reflex actions and those devoid of serious injury or obvious pain—are added to Illinois’s registry. We saw 17 such cases in Illinois in which state survey officials did find the aides to have been abusive. We also reviewed, in both Illinois and Georgia, what appeared to be comparable complaints in which a nursing home employee witnessed another staff member strike a combative resident. Both survey agencies made preliminary determinations that the employees had, in fact, abused residents. The Illinois survey agency not only included its determination in the aides’ registry files, it also referred the matter to its MFCU, resulting in a criminal conviction. The Georgia survey agency reversed its initial determination that the aide was abusive when the aide requested that the matter be reconsidered, even though the aide did not provide new evidence to disprove the allegation. Notes in the case file indicated that Georgia reversed its decision because the aide’s action was reflexive. Consequently, Georgia did not annotate the aide’s registry information to reflect a finding of abuse and did not refer this incident to its MFCU. We identified four additional instances among the 52 Georgia cases we reviewed involving nurse aides who hit or otherwise injured combative residents after these residents had tried, sometimes successfully, to harm them first. None of these cases resulted in determinations that aides were abusive. The files indicated that officials had determined that the aides did not intend to hurt the resident and were not abusive because the residents were combative. Consequently, no further actions were taken.

CMS officials agreed with state survey agency officials that intent is a key factor in assessing whether an aide abused a resident. However, they would not necessarily find a reflex response to be unintentional. These officials indicated that an aide who slaps a resident back could have developed intent in an instant and thus should be considered abusive.

Of the 158 cases of alleged physical and sexual abuse that we reviewed, 105 involved nurse aides. States notified 41 of these aides of their intent to annotate their registry files to reflect findings of abuse, which would prevent them from obtaining future employment in a nursing home. As table 5 shows, 27 of these 41 aides eventually had their registry files annotated. Consistent with Illinois’s broad definition of abuse and the fact that officials there have not narrowed its scope through its application, most of these aides were from that state.

We found examples of delays between the time the state survey agencies learned that a nurse aide had allegedly abused a resident to the date of the agencies’ final determinations. Our review of the 71 case files from Illinois and Georgia involving allegedly abusive aides, and our review of 1999 nurse aide registry records in Pennsylvania indicated that while some determinations were made in less than 2 months, a substantial number— 12—took 10 months or more. Three of these 12 determinations took at least 2 years. Such delays can put residents of other nursing homes at risk. By the time state survey agencies have determined that some aides are abusive, these aides may have already found employment in other homes.

The process of determining whether an aide actually abused a resident can be time-consuming. While CMS requires survey agencies to begin their investigation of an allegedly abusive aide within two days of learning of an allegation, it does not impose a deadline for completing these investigations. State survey agency investigations can be prolonged, particularly if law enforcement is involved.

Nurse aides are entitled to due process, but nursing home residents may remain vulnerable to abuse until final determinations are made. Once officials make an initial determination that an aide abused a resident, the aide must be informed in writing. The notification must also inform the aide that the agency intends to update the registry to reflect this determination, which would prevent the aide from obtaining future employment in a nursing home in that state. Because of the severity of these consequences, aides are entitled to hearings. Hearings must be requested in writing within 30 days of the notification from the state survey agency regarding its determination and its intent to include a finding of abuse in the registry. Hearings may not be held for several months, and hearing officers may not render their decisions immediately. No entry may be made in an aide’s registry record until a final determination is made that the aide was abusive. Our analysis of nurse aide registry records from 1999 indicated that, for all aides with abuse findings recorded in their registry files in all three states, hearings added, on average, 5 to 7 months to the determination process.

Inaccuracies in Nurse Aide Registry Web Sites May Compromise Resident Safety

We identified problems with the accuracy of information contained in one state’s nurse aide registry Web site that could have resulted in the provision of inaccurate information to nursing homes screening potential employees. Our test of the accuracy of the sites for the three states we visited showed that, in some instances, findings of abuse had been annotated to an aide’s registry record but had not been included in registry information posted on the Web site. For example, four Georgia aides with final determinations of abuse did not have such findings reflected in their files at the state’s registry Web site. Agency officials confirmed our results and consequently closed the agency site for more than a week. However, they told us that the problem was limited to the site and did not affect their ability to provide correct information by telephone or fax. They also reported that the agency’s ability to provide a complete list of abusive aides in its quarterly bulletins to nursing homes was not compromised.

Just as background checks would typically reveal only offenses committed in the state in which an applicant seeks employment, nurse aide registries reflect an aide’s history in a particular state. In 1998, the HHS Office of Inspector General recommended that HCFA assist in developing a national abuse registry and expand state registries to include all nursing home employees who have abused residents or misappropriated their property in facilities that receive federal reimbursement. A CMS contractor is currently conducting a feasibility study regarding the development of such a registry. The study includes a cost-benefit analysis to assess the implications of a centralized nurse aide registry and, to a lesser extent, the implications of tracking all nursing home employees. The implications of requiring other health care providers—such as home health agencies—to query nurse aide registries is also under study. The contractor is scheduled to report its findings as soon as March 2002.

Other Nursing Home Employees May Not Be Disciplined

Although nurse aides compose the largest proportion of nursing home employees, other employees, such as laundry aides, security guards, and maintenance workers have also been alleged to have abused residents. While survey agencies can prevent abusive aides from working in nursing homes and can refer licensed personnel, such as nurses and therapists, to state licensing boards for disciplinary action, they have no similar recourse against other abusive employees, who may continue to work in nursing homes. Survey agencies can, however, cite facilities for deficiencies if appropriate actions—such as reporting and investigating the allegations—are not taken.

Of the 158 cases of alleged physical and sexual abuse that we reviewed, 10 suspected perpetrators were employees who were not subject to licensing or certification requirements. None of the facilities in these cases were cited for deficiencies. Although there is no administrative process to enable the state to take actions against such employees, these employees could be criminally prosecuted. Of these 10 cases, 4 involved allegations that proved unfounded or for which evidence was inconsistent. One of the 10 employees ultimately pled guilty in court. Three others were investigated by law enforcement but were not prosecuted. The remaining 2 employees were terminated by their nursing homes but were not the subject of criminal investigations.

Conclusions

Nursing homes are entrusted with the well-being and safety of their residents yet considerable attention has recently been focused on the inadequacies of care provided to many nursing home residents. Along with receiving quality care, residents are entitled to be protected from those who would harm them. Residents who are abused need to be assured that their allegations will be immediately referred to the proper authorities and investigated expeditiously. In addition, law enforcement authorities need to ensure that abusive individuals are prosecuted when appropriate, and survey agencies should recommend to CMS that available administrative sanctions be imposed against known abusers.

Our work shows that nursing home residents need both stronger and more immediate protections. Law enforcement agencies, such as state MFCUs or local police departments, are not involved as often or as soon as they should be, especially when there are indications of potential criminal activity. Additionally, determining where to report complaints of alleged abuse can be confusing. Prompt reporting is especially crucial given the often-limited evidence available.

CMS is taking important steps that may better protect residents. For example, its feasibility study on the development of a national abuse registry could lead to enhanced resident safety. However, other efforts have fallen short. For example, an important tool could be the agency’s educational campaign using a new poster in nursing homes nationwide to better inform residents and family members about how to report abuse. However, the poster has been under development for more than 3 years.

More should be done to protect nursing home residents. CMS’s requirement that nursing homes not employ individuals convicted of abusing residents does not sufficiently prevent the hiring of potentially abusive individuals. Those who have committed similar offenses, such as child abuse, are eligible to work in nursing homes unless states impose a more stringent requirement. While CMS does not require criminal background checks, some states have instituted them. However, they may not be required for all prospective employees and may not identify offenses committed in other states. In addition, CMS’s definition of abuse is not sufficiently detailed to ensure that all states report every incident that CMS would consider abusive. Affording due process to nurse aides who have allegedly abused residents is important and necessary. However, determinations that nurse aides have been abusive can be time-consuming, leaving residents at risk if these aides continue to work in nursing homes. Finally, nurse aide registries may have incorrect information, allowing nursing homes to hire aides previously found abusive.

Recommendations for To better protect nursing home residents, we recommend that the CMS Executive Action

Ensure that state survey agencies immediately notify local law enforcement agencies or MFCUs when nursing homes report allegations of resident physical or sexual abuse or when the survey agency has confirmed complaints of alleged abuse.

Accelerate the agency’s education campaign on reporting nursing home abuse by (1) distributing its new poster with clearly displayed complaint telephone numbers and (2) requiring state survey agencies to ensure that these numbers are prominently listed in local telephone directories.

Systematically assess state policies and practices for complying with the federal requirement to prohibit employment of individuals convicted of abusing nursing home residents and, if necessary, develop more specific guidance to ensure compliance.

Clarify the definition of abuse and otherwise ensure that states apply that definition consistently and appropriately.

Shorten the state survey agencies’ time frames for determining whether to include findings of abuse in nurse aide registry files.

Agency Comments and Our Evaluation

We received comments on a draft of this report from CMS, the Department of Justice (DOJ), the three state survey agencies we visited (the Illinois Department of Public Health, the Georgia Department of Human Resources, and the Pennsylvania Department of Health), and the MFCUs in Illinois and Georgia. We also received comments from two organizations representing the nursing home industry—the American Health Care Association (AHCA) and the American Association of Homes and Services for the Aging (AAHSA).

In its comments, CMS generally agreed with our recommendations and said that it is committed to protecting nursing home residents from harm and explained that it is currently investigating new ways to combat resident abuse and neglect. We have reprinted CMS’s letter in appendix II.

CMS also provided technical comments, which we have incorporated as appropriate.

CMS agreed with our first recommendation and said it would instruct state survey agencies to immediately notify local law enforcement agencies or MFCUs of confirmed abuse allegations. CMS also said it would thoroughly review this recommendation when it completes its analysis of its Complaint Improvement Project. We believe that immediately notifying law enforcement of suspected abuse will enhance the safety of nursing home residents, and we urge CMS’s prompt action.

In responding to our second recommendation—that CMS accelerate its education campaign—the agency said that it is working with HHS to release its new poster as soon as possible, but did not indicate when it might be distributed to nursing homes. In addition, CMS agreed to request states to prominently list telephone numbers for reporting abuse in local telephone directories.

CMS agreed with our third recommendation and said it will review state policies and practices and reissue guidance regarding employment prohibitions pertaining to individuals convicted of abusing nursing home residents. We believe that an assessment of the current requirements, that includes an evaluation of the states’ implementation of these requirements, could have a lasting impact on resident safety.

In addressing our fourth recommendation—to clarify the definition of abuse and ensure that states consistently and appropriately apply this definition—CMS explained that states can use their own established definitions of abuse. According to CMS, the state’s definitions may be used when citing homes for deficiencies under their state licensure program but, when performing a federal survey, CMS noted that the federal definition must be used. CMS added that it would clarify this distinction with the states. However, we believe that it is also of great importance to clarify the definition of abuse that states should apply when considering whether nurse aides have abused residents and consequently may have this action reflected in their nurse aide registry files.

CMS agreed to consider our fifth recommendation—to shorten the time frames for determining whether to include findings of abuse in the nurse aide registry. CMS acknowledged that a considerable amount of time may elapse before reports of abuse are finalized and reported to the nurse aide registry. CMS added this is largely attributable to steps associated with due process. CMS pointed out that, with the exception of the time taken by the states to substantiate abuse allegations, all of these time frames are specified by regulation. However, the regulations do not specify a time frame for making a final decision once the hearing has been completed and the hearing record has been closed. CMS said it would take our recommendation into account when considering changes to these regulations. We believe that reducing this time period will provide residents with greater certainty that they will not be exposed to abusive aides.

We received oral comments from the Coordinator of DOJ’s Nursing Home and Elder Justice Initiative. She agreed with the findings in our report. She also added that resident abuse may be underestimated, as studies suggest a significant number of abuse cases are never reported. She said that, in order to respond appropriately to victims of abuse, local law enforcement and other “first responders” such as firefighters and paramedics, would benefit from special training. In her view, this training should include guidance regarding how to distinguish signs of physical abuse from other types of injuries, advice on interviewing elderly and confused residents, and investigative techniques and evidence preservation strategies unique to the nursing home setting. Our work did not include an evaluation of the training programs offered to law enforcement officials or “first responders.” In addition, she pointed out that DOJ could become actively involved in investigating abuse allegations in certain situations, such as those involving facilities where a pattern of abuse has been detected and instances where nursing home managers or employees have made false statements to state surveyors regarding resident care. In addition to these comments, we received technical comments from the FBI, which we incorporated as appropriate.

We received comments from all three of the state survey agencies we visited as well as the Illinois MFCU. These agencies described initiatives they have undertaken to increase awareness of resident abuse and improve reporting and offered technical comments, which we incorporated as appropriate. Although we provided our draft to the Georgia MFCU, it did not offer any comments.

Finally, we received comments from representatives of AHCA and AAHSA. Both organizations generally agreed with our recommendations. AHCA representatives told us that they suspect that abuse of nursing home residents is underreported. They said that they support providing more training to both caregivers and law enforcement officials. They noted that such training could discourage abusive behavior by nursing home staff and improve law enforcement’s responsiveness to instances of resident abuse.

Our work did not include an evaluation of such training programs. Representatives of both AHCA and AAHSA indicated that they strongly support the establishment of a national nurse aide registry and a national criminal background check for nursing home employees. In addition, the AAHSA representatives said that they strongly agreed with our recommendation to clarify the definition of abuse. They noted that the definition of abuse has long been the subject of debate and its clarification by CMS is in the interest of residents, as well as nursing home management and staff. In addition to these comments, both AHCA and AAHSA offered technical comments, which we have incorporated as appropriate.

As agreed with your offices, unless you announce its contents earlier, we plan no further distribution of this report until 30 days after its issuance date. At that time, we will send copies to the CMS administrator, interested congressional committees, and other interested parties. We will then make copies available to others upon request. If you or your staff have any questions about this report, please call me at (312) 220-7600. An additional GAO contact and other staff who made major contributions to this report are listed in appendix III.

Appendix I: Scope and Methodology

To determine the federal requirements for responding to, and investigating allegations of, abuse of nursing home residents, we reviewed federal laws and regulations. We interviewed officials from the Centers for Medicare and Medicaid Services (CMS ) regarding these requirements and also discussed their oversight of the state survey agencies responsible for surveying nursing homes and certifying their compliance with federal laws and regulations. We conducted our work in three states with relatively large nursing home populations—Illinois, Georgia, and Pennsylvania—and discussed these requirements with survey and law enforcement officials in these states. In addition, we met with officials from the three states’ departments on aging and local area agencies on aging because they may also receive abuse referrals and conduct investigations. We reviewed and discussed relevant state policies and procedures with these officials. Finally, to become familiar with the general progression of abuse investigations, we attended conferences and consulted with experts in the field of elder abuse.

For each of the three states we visited, we reviewed cases involving allegations of physical and sexual abuse. Most of these cases were opened by Medicaid Fraud Control Units (MFCUs) or reported to state survey officials in 1999 or 2000. We focused on the survey agencies’ and MFCUs’ files. We did not review any of the allegations investigated by the state departments on aging or local area agencies on aging because of agency officials’ concerns with confidentiality. In total, we reviewed 158 cases to determine the circumstances and nature of the cases, the extent to which the allegations were investigated and prosecuted, and the timeliness of referrals and investigations. However, our findings cannot be generalized or projected. To assess the timeliness of reporting abuse allegations, we used the information from our case review and compared these results to federal and state guidelines. For cases that the state survey agency referred to the MFCU, we calculated the number of days between agency receipt and referral to the MFCU. We also determined the number of convictions resulting from these referrals.

At the Illinois Department of Public Health (IDPH)—the state survey agency—we identified and reviewed 50 cases involving physical or sexual abuse that were reported by individuals as complaints or by nursing homes in incident reports. All of these allegations were referred by IDPH to its MFCU. These included all of the allegations of physical or sexual abuse for which the MFCU had opened investigations in 1999 and closed at the time of our review. We reviewed the relevant files at both agencies. We also examined 1 month of referrals that the MFCU reviewed but ultimately did not investigate. These referrals typically involved bruises of unknown origin, old injuries, a lack of witnesses, or instances in which the intent to hurt a resident was questionable or unfounded.

In Georgia, we reviewed 52 abuse allegations. Of these, 14 were either complaints or incident reports that the state Department of Human Resources (DHR)—in which Georgia’s state survey agency is housed—had referred to the MFCU in 1999. These 14 cases represent all of the allegations of physical or sexual abuse that DHR referred to the MFCU in 1999 and for which the MFCU opened and subsequently closed an investigation. We reviewed these 14 cases at both agencies. Because DHR does not refer all physical and sexual abuse cases to the MFCU, we judgmentally selected and reviewed 38 additional abuse cases that DHR had received but had not referred to the MFCU. We chose these additional cases from the survey agency’s 1999 log of complaints, which included 60 physical and 14 sexual abuse cases, as well as from its 1999 log of incident reports, which included 361 physical and 47 sexual abuse cases. We selected cases based on the proportion of the allegations that involved physical and sexual abuse, as well as complaints and incident reports.

Because local law enforcement in Pennsylvania is assigned primary responsibility for investigating the physical or sexual abuse of nursing home residents, our case file selection for this state differed from that of Illinois and Georgia. As the MFCU is typically not involved in these cases, the files we reviewed included 56 cases reported to Pennsylvania’s state survey agency—the Department of Health (DOH)—in 1999 and 2000. These cases included a mix of complaints and incident reports as well instances of both physical and sexual abuse.

To identify agencies that might accept reports of abuse, we obtained several telephone books from each state, including those for large and small metropolitan areas. We reviewed government and consumer pages to identify complaint telephone numbers for state survey agencies, other social service and law enforcement agencies (excluding local police departments), and other organizations, such as long-term care ombudsmen, that appeared to be potential places for reporting abuse of nursing home residents. We called these numbers to verify that the organization would accept such a complaint. We also made follow-up calls when we were referred elsewhere.

To determine the extent of law enforcement’s involvement in investigating abuse allegations, we interviewed MFCU officials in Illinois, Georgia, and Pennsylvania. We also spoke with representatives from 19 police departments from these states—including both urban and rural areas— and four prosecutors’ offices. Some of these departments and prosecutors were chosen because of their involvement in some of the cases we reviewed.

To determine the extent to which nursing homes were sanctioned for violations related to abuse, we identified from the files we reviewed the nursing homes that had been cited for deficiencies related to the abuse allegations. We then searched state Web sites to obtain surveys pertaining to these homes from the time of the abuse allegation to the present and reviewed the surveys to determine what, if any, sanctions had been recommended.

To evaluate whether sufficient safeguards exist to protect residents from abusive individuals, we reviewed federal and state laws regarding criminal background check requirements for nursing home employees and state nurse aide registries. We also interviewed state survey agency officials and obtained relevant documentation.

We tested the accuracy of online nurse aide registry Web sites in each state we visited to verify that findings of abuse had actually been posted to the site. Survey officials in the three states provided us with lists of nurse aides who had been found to be abusive through their administrative processes. Using those lists, we tested the registries to determine whether all names and information provided to us were accurately reflected by each state’s Web site. In addition, we obtained copies of state agencies’ 1999 and 2000 quarterly bulletins that were sent to nursing homes and compared the names of nurse aides with abuse findings listed in these bulletins to the list originally obtained from the state agency.

In Georgia and Illinois, we reviewed lists of aides notified by the survey agencies that their registry files would be annotated to reflect a finding of abuse. From these lists, we determined the number of aides requesting an administrative hearing and the number of findings actually entered in the registries. In Pennsylvania, we reviewed a similar list, although it only included those aides who actually had findings of abuse annotated in the registry. For all three states, we calculated the average length of time between when the state notified aides of its plan to annotate the registry to the date the agency ordered that the findings be posted. Finally, we interviewed state agency officials about their policies regarding professionals and other staff who abuse nursing home residents.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

Lynn Filla-Clark, Tiffani Green, Barbara Mulliken, and Christi Turner also made key contributions to this report.

Related GAO Products

Nursing Workforce: Recruitment and Retention of Nurses and Nurse Aides Is a Growing Concern. GAO-01-750T. Washington, D.C.: May 17, 2001.

Nursing Homes: Success of Quality Initiatives Requires Sustained Federal and State Commitment. GAO/T-HEHS-00-209. Washington, D.C.: September 28, 2000.

Nursing Homes: Sustained Efforts Are Essential to Realize Potential of the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September 28, 2000.

Nursing Home Care: Enhanced HCFA Oversight of State Programs Would Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.: November 4, 1999.

Nursing Homes: HCFA Should Strengthen Its Oversight of State Agencies to Better Ensure Quality Care. GAO/T-HEHS-00-27. Washington, D.C.: November 4, 1999.

Nursing Home Oversight: Industry Examples Do Not Demonstrate That Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington, D.C.: August 13, 1999.

Nursing Homes: HCFA Initiatives to Improve Care Are Under Way but Will Require Continued Commitment. GAO/T-HEHS-99-155. Washington, D.C.: June 30, 1999.

Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.

Nursing Homes: Complaint Investigation Processes in Maryland. GAO/T-HEHS-99-146. Washington, D.C.: June 15, 1999.

Nursing Homes: Complaint Investigation Processes Often Inadequate to Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.

Nursing Homes: Stronger Complaint and Enforcement Practices Needed to Better Ensure Adequate Care. GAO/T-HEHS-99-89. Washington, D.C.: March 22, 1999.

Nursing Homes: Additional Steps Needed to Strengthen Enforcement of Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March 18, 1999.

California Nursing Homes: Federal and State Oversight Inadequate to Protect Residents in Homes With Serious Care Violations. GAO/T-HEHS- 98-219. Washington, D.C.: July 28, 1998.

California Nursing Homes: Care Problems Persist Despite Federal and State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.