Residents in nursing homes are some of the most
vulnerable and helpless citizens in the US, with nearly 1.7 million elderly and
disabled persons residing in about 17,000 facilities. And as difficult as it is
to believe in this day and age, there is indisputable evidence to show that
many nursing home residents are being neglected and abused on a daily basis.
passed by Congress in 1987, with a goal to improve nursing home care. However,
following an in-depth investigation, a recent report, released by Consumer
Reports, found inadequate care in nursing homes is still very common,
particularly in the large for-profit corporations that run nursing home chains
all across the nation.
In order to receive
funding from public health care programs like Medicare, the Nursing Home Reform
Act requires the nursing home industry to comply with federal regulations
related to the quality of care of the elderly in nursing homes and requires
that "a nursing facility must care for its residents in such a manner and
in such an environment as will promote maintenance or enhancement of the
quality of life of each resident."
The revelations in
recent cases about abuse and neglect in nursing home, prove that those
requirements are not being met. One of the worst examples of documented harm to
the nation's elderly began in February 2006, during an annual review by state
inspectors in Kentucky that found an extremely high number of serious health
and safety violations at the Lakeside Heights Nursing Center in Highland
Heights, Kentucky's largest nursing home with 286 beds.
According to a
report by the inspectors, obtained in April 2006 by the Cincinnati Post through
an open records request, the inspectors found 10 residents had been placed in
what the state termed "immediate jeopardy" because of substandard
practices and procedures, including one patient who died in November 2005 after
the staff failed to respond with proper treatment to a health problem with
which he was diagnosed.
The report said the
facility was often critically understaffed and that on 24 occasions only one
licensed nurse was assigned to the entire facility and at times, the nurse on
duty was not trained to administer intravenous fluids, which placed three
residents in jeopardy.
According to the
report, the residents often could not get services or supplies from outside
vendors because of bills that the nursing home had not paid. The inspectors
documented one case in which a patient, who was frequently choking on solid
food, could not get to an appointment with a doctor because the home was in
arrears to the cab company.
The report said the
local water district threatened to shut off service to the facility if the
nursing home did not make immediate payments on an overdue bill of $40,000.
Those and many
other problems in the report led Kentucky's Inspector General, Robert Benvenuti
III, to tell the Cincinnati Post, that this was the worst case he had seen in
his 26 months on the job. Mr Benvenuti said a major source of the problems was
too few workers, which kept basic care from being performed.
In one instance, a
state inspector saw a resident sitting, urine-soaked, in a wheelchair and two
new pressure sores were identified on the patient's buttocks and the patient
was not being checked every two hours as required by law.
In another case, an
inspector saw a resident moving about the home in a wheelchair with an open,
uncovered wound to the big toe and observed dirt and pieces of hair stuck to the
wound, according to the report.
reported having asked for new dressing at 7 am
that morning, and when nobody responded, removed the old dressing. The report
noted that a new dressing was not provided until 5:30 pm that day.
With not enough
staff to get patients out of bed or turned in bed, inspectors found that
residents developed new bed sores, or sores that they already had had worsened
and that 31 residents did not receive doctor-ordered treatment for their
One patient died of
an electrolyte imbalance after the nursing home failed to follow the
instructions of doctor ordered treatment. The report said that nursing home
staff failed to notify doctors of changes in the patient's condition, failed to
properly assess the patient's condition, and failed to establish a plan to care
for that person.
According to the
Cincinnati Post, another resident did not receive treatment for blood coming
from his mouth for eight hours, during which time bleeding also started in a
chest wound and his rectum.
In another case, a
resident left the nursing home unsupervised and without permission several
times and once walked to a nearby store, bought alcohol and was later found
sitting in a puddle of urine, wreaking of alcohol, in a nursing home room. Another
time the police returned the patient to the facility and staff had not even
realized that he had left.
that one resident fell from a shower chair and sustained a skull fracture and
that a plan to move the patient to and from the shower had not been developed.
Three residents did
not receive doctor ordered intravenous antibiotic medications and the nurse in
charge told the inspectors that nursing home officials knew she was not trained
in intravenous administration, but continued to schedule her as the only nurse
in the facility.
On March 29, 2006,
the Centers for Medicare and Medicaid notified Lakeside that it would terminate
funding for residents paid for by Medicare or Medicaid in 30 days because of
health and safety violations that put patients at risk.
But the lead
inspector says cutting funding is not enough. "I believe the standard of
care was at such a low level that it constituted fraud," Mr Benvenuti
money flowing into that facility from the federal government and state to
provide services," he explained. "If those services are not provided,
that is fraud."
In April 2006,
Kentucky Attorney General, Greg Stumbo, announced that his office was
investigating charges of abuse and neglect at Lakeside and whether the nursing
home committed Medicaid fraud. In a statement, he said that accepting payment
for care and services that are not delivered can constitute fraud.
report, he noted, shows that therapists had stopped giving services in the wake
of huge unpaid bills, and that nursing home employees' checks had bounced and
utility bills went unpaid.
The state also
alleges that Lakeside did not perform proper background checks on all employees
and according to the report, some employees had criminal records. In fact, one
nurse hired had previously pleaded guilty to felony theft of a controlled
substance and theft by unlawful taking.
Barbara Becker, who became a staunch advocate for elderly citizens in nursing
homes after her mother-in-law was murdered in a nursing home, there are also
the problems created by "the failure of many nursing homes to adequately
protect residents from other abusive residents."
mother-in-law's case, she notes, the male resident who committed the murder had
a criminal record, a history of over 50 instances of abusive behavior, and was
described by a psychiatrist as "an accident looking for a place to
According to the
April 14, 2006, Kentucky Post, �Inspector General Robert Benvenuti III notified
the Highland Heights nursing home that its state operating license will be
revoked in 30 days and the center, the largest nursing home in the state, will
Thomas, who practices civil litigation in Mississippi, says there are similar
cases of neglect, abuse and fraud in nursing homes all over the country.
Mr Thomas and
attorneys, John Giddens and Pieter Teeuwissen, recently filed two lawsuits
against the giant nursing home conglomerate Beverly Enterprises in federal
court in Mississippi.
One lawsuit is a
breach-of-contract class action on behalf of residents who were not provided
adequate care in accordance with current state and federal regulations, and the
other involves severe abuse and neglect of nursing home residents.
342 nursing homes across the US and it remains the poster child for patient
neglect, abuse and fraud in the nursing home industry.
On the top of the list of problems with policing
nursing homes, critics say, is that surprise inspections are in reality seldom
random and their level of predictability allows nursing homes to conceal the
evidence of abuse and neglect.
This lack of
surprise is very common in Mississippi, according to Mr Thomas, who says
nursing home employees have told him that they always know when an inspector is
coming and they are instructed to clean up the facility in time for the
Mississippi," he says, "inspectors visit at around the same time
every year and if there has been no inspection for 12 months, then the
inspectors can be expected to arrive soon."
elderly advocate, Suzie Bergland, of Moline IL, "The main problem with
helping people who have problems at nursing homes is that the industry
corruption seems to be well ingrained."
homes even seem to have purposely seen to it that people at the oversight
agencies are people who are loyal to the nursing home industry," she says,
"like former nursing home administrators."
All critics agree
that the number one problem in nursing homes that leads to all others, is
understaffing, and, try as they might, regulators cannot get the for-profit
agencies to comply with mandatory staffing requirements. Instead they go to
great lengths to con the inspectors when it comes to staffing.
according to attorney Thomas, "When an inspection is due, Beverly
facilities increase staffing to make sure they comply with state staffing
They also keep two
separate work schedules he says. One to show inspectors with names of people
who do not work at the home, and the true schedule that shows understaffing is
points the finger of blame for the gross abuse and neglect of the elderly in
nursing homes due to understaffing directly at the top management officials.
"I believe that most nursing home employees are doing the best that they
can," he states, "but have been put into a position to fail by the
corporations running the homes."
he says, are the least trained, lowest paid, and most overworked employees in
nursing homes. Their job description requires them to feed and bathe residents,
assist them in and out of bed, help continent residents to the bathroom, clean
and change the diapers of incontinent residents, reposition those who are at
risk of developing bed sores, perform range of motion exercises on residents to
prevent painful contractures of the hands and feet, help residents in walking,
and provide other personal assistance to the residents in regard to their
A major problem as
far as believing complaints made directly by residents, Mr Thomas says, is that
they are sick to begin with, making it difficult for family members to identify
what problems are caused by the progression of their underlying conditions and
what problems are caused by inadequate care.
course," he notes, "in lawsuits the nursing homes blame everything on
the underlying medical conditions and, without saying it, ask juries to buy
into the notion that sick people do not deserve good care from companies that
are getting paid to care for them."
Mr Thomas says
unnecessary prescription drug use is also very common with residents in Beverly
facilities. "Psychotropic drugs sedate residents and make them sleep
more," he notes.
According to Mr
Thomas, "Caregivers in understaffed nursing homes need as many residents
as possible to be asleep because there is not sufficient staff to adequately
care for all the residents when they are awake."
for residents," he points out, "is that it damages their health
because they are less likely to get out of bed, ambulate and otherwise move
around, which is vital to staying healthy."
According to the
lawsuits filed by attorney Thomas, reimbursement for this inadequate care comes
through several sources including private pay, Medicare, and Medicaid. In many
instances, the complaint alleges, "residents� entire social security
checks are signed over to Beverly to pay for the residents� stay."
The federal and
state governments usually pay for a portion of the care, the lawsuit notes.
However, reimbursement paid through Medicare pays a significantly higher amount
than reimbursement by Medicaid, so the complaint alleges that Beverly makes it
a "corporate policy" to attract residents who are Medicare eligible.
Medicare resident at a Beverly facility, the lawsuit explains, is admitted
directly from a hospital and is eligible for Medicare for only the first 100
days; so Beverly provides Medicare residents with more and better care than non-Medicare
residents, including physical therapy, occupational therapy, speech therapy,
and a greater amount of hands on nursing care and charting.
Then, before the
100 days are up and the Medicare eligibility expires, Beverly takes steps to
have orders for therapy withdrawn because the therapy will soon no longer be
paid for by Medicare.
As a result of
Beverly�s system of providing therapy only to Medicare residents and only
restorative care to non-Medicare residents, Beverly provides differing levels
of care to residents based on pay source in direct violation of federal law,
according to Mr Thomas.
assistants become overworked due to understaffing, he says, one of the first
duties that they eliminate is restorative care, which causes many residents to
not receive this much needed, beneficial care.
Beverly�s system of
acquiring Medicare eligible residents, the complaint alleges, requires a
regular influx of new residents from hospitals and the emphasis on acquiring
these new residents can be potentially devastating to other residents.
"Existing residents receive less care than the Medicare residents, causing
or potentially causing a general decline in their overall health," the
residents� health declines severely they either die or must be hospitalized,
which frees up bed space to admit a new Medicare resident," the complaint
charges. According to Mr Thomas, this creates a vicious and improper cycle of
substandard care that monetarily benefits Beverly.
William Glass is a
plaintiff in the lawsuit filed by Mr Thomas. In the fall of 2004, Mr Glass was
placed in the Beverly Healthcare Eason Boulevard facility in Tupelo,
Mississippi, because he had episodes of violent behavior, which were triggered
by medication interactions.
During the entire
time that Mr Glass was a resident, a foul odor that smelled like urine and
feces, was present in the facility and children and grandchildren say they did
not know that it was not acceptable for a nursing home to constantly smell of
urine and feces.
Mr Glass alleges
that the foul odor was a direct result of understaffing and that Beverly did
not provide enough nurses and certified nursing assistants to meet the
residents� bowel and bladder needs. As a result, incontinent residents who had
urinated or defecated in a diaper were not cleaned or changed in a timely
fashion. The soiled linens and bed pads were also not replaced in a timely
manner, which further contributed to the foul odor.
In addition, for
many residents who were originally continent but needed assistance getting to
the toilet, Beverly�s understaffing resulted in there not being sufficient
staff to assist residents to the toilet and residents became incontinent who
otherwise would not have.
When he entered the
Beverly facility, Mr Glass was continent of both bowel and bladder. But despite
the fact that he was continent, employees at Beverly put diapers on him and
encouraged him to urinate and defecate in diapers.
After putting him
in diapers, the complaint states, employees did not regularly change him or
keep him clean. On one occasion, family members found Mr Glass with his diaper
so full of urine and feces that it was around his knees and on another, family
members found him and another resident eating a meal with feces on their hands
and wearing soiled diapers.
The lawsuit charges
that Mr Glass was not properly bathed and was left in the same clothes for
weeks at a time and that as a result of his unclean condition, Mr Glass smelled
bad when his family visited. Virtually the only time that Mr Glass was bathed,
the complaint charges, was when his family took him home and bathed him.
According to the
complaint, Mr Glass lost between 50 to 60 pounds while a resident of Beverly as
a result of substandard care and inadequate provision of food and hydration.
John Dobbs, another
plaintiff in the lawsuit, was admitted to the Beverly facility in Ripley,
Mississippi, on August 16, 2002, because he had decreased mobility from a prior
stroke. Due to his stoke, Mr Dobbs could not communicate well with people,
including his family members.
experiences at the Beverly nursing home in Ripley are similar to the
experiences of Mr Glass in Tupelo. During his residency, the Ripley facility
was chronically understaffed.
In fact in this
instance, employees of Beverly themselves, told the Dobbs� family members that
the nursing home was understaffed and that there were times when one person had
to cover two wings of the facility.
As a result of the
understaffing, Mr Dobbs was not placed on a bedpan so that he could relieve
himself and was forced to lay in his own urine and feces for long periods of
time. He told his family members that he was soiling himself because nursing
home staff would not respond to his call light.
Like Mr Glass, Mr
Dobbs lost about 60 pounds while he was in the facility, as a result of
substandard care and inadequate provision of food and hydration. The food
served in the facility, the lawsuit alleges, was not tasty or nutritious as
required by law.
charges, that a "sample supper at Beverly Ripley -- according to a
facility employee -- consisted of one unheated slice of bologna, two pieces of
bread, and some potato chips."
did not even include condiments such as mayonnaise or mustard," the
During his stay, Mr
Dobbs� developed pressure sores as a result of the inadequate care and in the
end, had to undergo a foot amputation due to those pressure sores.
Betty Coggins is
also a plaintiff in the lawsuit. She was placed in the Beverly Tupelo nursing
home after suffering a stroke and becoming paralyzed on one side of her body.
During her last six
months at Beverly, Ms Coggins also lost between 60 and 70 pounds due to
understaffing and not being properly fed.
understaffing, the lawsuit alleges Ms Coggins was not turned enough and
pressure sores developed that were so severe that they required hospitalization
several times. Because she was not kept clean and was left lying in her own
urine and feces for long periods, during one hospital visit, an emergency room
physician reported that the unchanged bandages on her pressure sores had rotted
into her body.
As a result of the
inadequate care, according to the complaint, "The plaintiff in this case
also contracted a severe infestation of scabies that was neglected and not
treated or diagnosed for over a month while she endured severe physical
was worse than it otherwise would have been," the lawsuit states,
"because her paralysis prevented her from scratching when she itched and
she was permanently scarred from the scabies infestation."
Adding to the
understaffing and resulting substandard care, the lawsuit alleges that Beverly
maintains a bonus program tracked by a document known as the �Beverly
Scorecard.� The program awards bonuses to administrators and directors of
nursing whose facilities meet the budget and to executives whose managed
facility segments meet or are below budget.
This bonus program
contains a scale so that the more a facility undercuts its budget the greater
the bonuses are for the administrator and director of nursing. "This gives
Administrators and Directors of Nursing," the complaint alleges,
"financial incentives to understaff, not request more than the budgeted
staff, not provide adequate food to residents, and ignore caregivers�
complaints about understaffing and inadequate care."
Mr Thomas reports
that he was happy to see the New York attorney general recently criminally
prosecute employees of a nursing home for abuse and neglect of residents.
"I wish more prosecutors would do the same," he states,
"including prosecution of the corporate executives who put the systems
although it is a crime to abuse and neglect nursing home residents," he
says, "it is not the type of traditional crime that prosecutors usually
he points out, "would require prosecutors to leave their comfort zone and
shift resources away from other areas of law breaking."
It seems as if
prosecutors in some states have at least begun to chip away at abuse and
neglect that amount to crimes against the elderly, because on May 19, 2006, the
Indianapolis Star reported, "A grand jury has indicted two former nursing
home officials on neglect charges, alleging they allowed a resident to lie in
his own waste for days with back sores and maggot-covered clothing."
As for private
lawsuits, legal experts say they accomplish little when it comes to stopping
abuse and neglect of the elderly. For instance, in October 2005, Beverly agreed
to pay $18.9 million to 800 residents in nursing homes in Arkansas to settle
two class action lawsuits, and yet the giant chain is facing more lawsuits this
year for the exact same type of misconduct.
In another case, on
May 4, 2006, after a six-week trial, a jury awarded $20 million to the estate
of a man who died at a Beverly facility in Frankfort, Kentucky, after nurses
failed to respond to his cries for help.
Twenty million is
chump change to Beverly. On August 18, 2006, the US Department of Justice
issued a press release to announce that Beverly Enterprises "has agreed to
pay the United States and the State of California $20 million to settle
allegations that its former wholly owned subsidiary, MK Medical, violated the
civil False Claims Act."
charged that MK Medical submitted false claims to the Medicare and Medi-Cal
programs from 1998 until 2002, while Beverly owned the company.
permitted to settle the case by paying $14,487,278 to the United States and
$5,512,722 to the state of California, and as usual, no company executive was
charged or jailed for criminal wrongdoing.
prospect of prosecuting the for-profit nursing home chains and the culprits at
the top, as well as obtaining justice in private civil actions, seems to be
growing dimmer each year. To insulate themselves from liability, the largest
nursing home conglomerates are going to great lengths to restructure their
businesses. The latest stunt, according to Consumer's Reports, is where;
"A nursing-home chain splits itself into little pieces, called
"Some of these
entities own the individual nursing homes," Consumer explains, "while
others lease and operate the facilities, effectively putting the company's
major assets -- its real estate -- beyond reach of a lawsuit."
Legal experts say
the only truly effective tool for rooting out fraud, abuse and neglect in the
nursing home industry falls under the False Claims Act (FCA). The qui tam
provision in the act allows persons with knowledge of fraudulent claims being
submitted to federal programs, like Medicare or Medicaid, to bring a lawsuit
against the facility on behalf of the government.
According to Lou
O'Reilly, founder of Texas Advocates for Nursing Home Residents, "We need
more lawsuits filed against providers using the False Claims Act and have them
pay back the government for abuse and neglect of residents."
would clean up the bad nursing homes," he says.
FCA charges can
result in substantial penalties. According to cases compiled by the watchdog
group, Taxpayers Against Fraud, in 2001, Vencor, Inc., paid $104.5 million to
settle charges that it had submitted false claims to Medicare, Medicaid, and
other government programs. Twenty million of that amount, the Department of
Justice said, was for false claims submitted related to failure to provide
care, including inadequate staffing, improper care of decubitus ulcers, and
failure to meet residents� dietary needs.
Critics say it
should be mandatory for nursing homes to post a notice informing employees that
under the provisions of the False Claims Act, whistleblowers can earn between
15 and 30 percent of money recovered from a nursing home that submits
fraudulent claims to a federal program for inadequate care or services never
for injured parties can be found at Lawyers and Settlements.com
Pringle is a columnist for OpEd News and an investigative journalist focused on
exposing corruption in government and corporate America.