Indiana Attorney General's Office - Abysmal Record of Investigating NH Complaints

August 24, 2010

Indiana Nursing Homes Dodge Scrutiny

Attorney general has filed 6 complaints out of 300 cases in past 5 years

By Heather Gillers and Tim Evans, Indianapolis Star

When state health inspectors and police investigated a rape reported at a Marion nursing home in June 2008, what they discovered suggested such an assault could have been prevented.

The accused resident was a sex offender on parole -- something the nursing home's administrator had known since the man was admitted to the facility three months earlier. But the administrator did not ensure that information was shared with nurses and aides. Nor did the home make any plan to protect residents from the man.

So, what happened when state health inspectors made the attorney general aware of the Marion administrator's inaction?

Nothing.

The attorney general's office decided not to file an official complaint that would trigger a review by the Indiana State Board of Health Facility Administrators.

Without that complaint, the board -- the body that licenses and disciplines nursing home administrators -- never even had the opportunity to review the case.

In Indiana, that has become the norm. Over the past five years, the Health Department has passed along about 300 inspection reports to the attorney general in accordance with a federal law that says health inspectors must report major problems to licensing officials. At some homes, inspectors found such problems year after year.

But from those 300 reports, an Indianapolis Star investigation found, the attorney general brought the board a grand total of six complaints.

""It just defies logic that only 2 percent of those surveys result in the complaints being filed,"" said Robyn Grant, of the statewide advocacy group United Senior Action. ""It makes me definitely question how the work of the administrator is being evaluated.""

Attorney General Greg Zoeller -- who has not filed a single Health Department case since he took office in 2009 -- said his office vigorously investigates every inspection report. A deputy said the office files a complaint only when the nursing home administrator is personally responsible for a problem.

Other states -- and one past Indiana attorney general -- have used their authority more broadly.

A critical role

The attorney general is just one of many gatekeepers in the state's nursing home industry but is the only state official empowered to bring disciplinary charges against administrators -- a role experts call critical.

Administrators set the tone for care and must make sure policies are followed in the facilities they operate, said Traci Scott, an administrator at Springhurst Health Campus in Greenfield, one of the state's top-ranked nursing homes.

""When you have a systemic problem, (an administrator) has overlooked something,"" she said. ""You really have to know what's happening every day in every part of the building.""

Without the threat of serious ramifications, experts and advocates say, administrators are more likely to cut corners -- often at the expense of the safety and dignity of vulnerable Hoosiers.

The issue is of particular concern in Indiana because federal regulators rank nursing homes here among the lowest performing in the nation. But as nursing home care in Indiana has fallen further behind other states over the past 10 years, fewer administrators have been disciplined for those health inspectors' troubling findings.

In the past five years, all six of the complaints brought against administrators based on Health Department reports -- five of which resulted in discipline -- were filed by former Attorney General Steve Carter. But that was out of 258 reports the Health Department sent his office during his second term.

Zoeller's office was sent 40 reports in 2009, the first year of his term. But Zoeller has not turned a single one of those reports into a complaint.

The attorney general's office can -- and sometimes does -- file disciplinary cases against administrators based on information from sources other than the Health Department -- if an administrator commits a crime, for example.

But critics say that by bringing so few Health Department cases to the board, the office misses an opportunity to hold administrators of problem homes accountable.

The Star left multiple phone messages for Carter that were not returned. Zoeller's office defended its practices.

Deputy Attorney General Elizabeth Kiefner Crawford, who worked on administrator cases under Carter, said the scope of what the office can punish administrators for is very narrow.

""If (administrators) have appropriate policies in place,"" Crawford said, ""that may be all that you can do, because they obviously can't be in the building 24 hours a day.""

Zoeller's office said administrators are sometimes chastised informally, without the filing of a public complaint, but did not respond to a question from The Star about how many times -- if any -- that happened last year.

Abigail Kuzma, who leads Zoeller's Consumer Protection Division, questioned The Star's attempt to draw a correlation between the number of problems brought to the attorney general's attention by inspectors and the number of complaints filed.

""Just as a county prosecutor looks at a police officer's incident report and decides whether the evidence supports filing criminal charges,"" she said, ""we at the attorney general's office must carefully consider all the confidential evidence -- not just the fraction of the evidence available to the public -- and determine if a case rises to the level of a licensing violation.""

But The Star's review of inspection reports shows that Zoeller and his predecessor, Carter, have taken no disciplinary action even when inspectors' findings suggest -- sometimes year after year -- that an administrator might bear some responsibility for a home's problems.

Besides the Marion sex offender case -- in which Carter declined to file a complaint -- reports that were sent to the attorney general's office but did not result in filing a complaint against an administrator's license include:

After a 2007 storm left the call lights at a Westside nursing home inoperable, the facility took 11 days to put in a backup system. That left bedridden residents unable to summon staff, and six residents had falls. Carter's office took no disciplinary action.

In Muncie in January 2009, an administrator was aware that heating units in 26 rooms needed to be replaced but left residents shivering for weeks -- temperatures in some rooms had dropped to the mid-50s -- in the middle of winter. Zoeller's office has taken no disciplinary action. A spokesman said the case is still open.

Inspectors visiting a home in west-central Indiana in October 2009 found the facility failed to do enough to protect residents from developing pressure sores. Part of the administrator's job, according to the home's policy, was to monitor its procedures for dealing with the painful and potentially life-threatening wounds. But inspectors found the home was failing to assess residents' sores. A spokesman said the case is still open.

But it's not just such extreme examples that trouble advocates for seniors. It's also the repeat offenses: Since 2000, 24 administrators have had three or more poor inspection reports -- sometimes from multiple facilities -- sent to the attorney general's office within a four-year period. Five of those administrators were referred for discipline three times within a single year.

Of those 24 administrators, however, only two were brought before the board.

""I've seen cases where one administrator goes from facility to facility and leaves a trail of neglect and poor care,"" said Grant, the seniors advocate. ""When you have an administrator that's overseeing a nursing home where survey after survey after survey, it's bad, bad, bad, bad -- well, nothing is happening to those administrators.""

There is evidence that if the attorney general followed through with complaints and made the health facility administrators board aware of problems, the board would hold more bad administrators accountable.

Consider: When former Attorney General Karen Freeman-Wilson was named to fill the post in 2000, she was confronted with a nearly three-year backlog of 300 inspection reports.

After reviewing those reports, and working under the same laws as Carter and Zoeller, she filed 92 complaints. The board responded. In at least 40 of those cases, it determined the administrator involved should receive some kind of reprimand, fine, continuing education or other discipline.

Freeman-Wilson did not confine her complaints to wrongdoing administrators had themselves committed. Instead she sought to hold them accountable for systemic problems -- the way some other states do.

""Karen Freeman-Wilson made these cases a priority and took them very seriously,"" said William Niemier, who handled many of those cases while serving as Freeman-Wilson's chief of medical licensing, and whose wife heads the advocacy group United Senior Action.

""Now whether subsequent attorneys general -- obviously there's a lot of discretion there -- but apparently from the numbers they don't put the same priority on those cases that we did.""

A costly decision

The aggressive approach was a politically costly decision for Freeman-Wilson, a Democrat appointed to serve out the last year of Jeffrey Modisett's term as attorney general. Health-care association members, nursing home owners and other members of the nursing home lobby contributed nearly $11,000 to Carter, her Republican opponent in the November 2000 election, according to campaign finance records.

The Indiana Health Care Association, a trade group representing for-profit nursing homes, also sued, claiming she had not conducted a thorough investigation.

Carter won the election and settled the suit -- and over his eight-year tenure, the number of complaints filed against administrators dropped precipitously.

Former board member the Rev. J. ""Woody"" Woodford said he preferred Freeman-Wilson's practice of sharing many cases with the board. Letting the attorney general screen out all but a few cases, he said, might mean missing opportunities to hold administrators accountable.

""We're not looking at it through the eyes of an attorney -- whether they can make a case or not,"" Woodford said. ""We are looking at real live people, the people who perpetrate and the people who are abused.""

Woodford, who left the board in 2007, was shocked to learn only six Health Department cases have been filed in the past five years.

""I cannot believe,"" he said, ""that the state of Indiana's health-care system has improved to that point.""

Indiana State Board of Health Facility Administrators President Shelley Rauch, who runs an Indianapolis nursing home, declined comment.

Other states have taken a more aggressive approach similar to Freeman-Wilson's.

Ohio's Board of Examiners of Nursing Home Administrators sends a warning letter to every nursing home administrator referred by health inspectors under the federal law, whether or not the state determines the administrator should be held accountable for the poor care.

""We've found that actually it's cut down the number of (inspection findings of) substandard care,"" said Executive Director Douglas Andrews. The letter remains in an administrator's file for a year, he said, and ""they want it out of there real fast.""

In Illinois last year, one nursing home administrator was reprimanded after a resident who was not supposed to leave the facility without supervision walked out of the home on his own.

In Wisconsin, an administrator was hauled before the state's licensing board last year because his facility failed to properly treat a resident who developed a pressure sore. He voluntarily surrendered his license.

In Indiana, The Star found, it's unlikely the licensing board would even hear of such complaints.

Additional Facts
Action taken
Every year, the State Health Department sends the attorney general's office dozens of inspection reports detailing problems in nursing homes. The attorney general then decides how many of those reports merit filing a formal complaint against home administrators.

Greg Zoeller
2009-present
» Reports (through 2009): 40.
» Complaints filed: 0.

Steve Carter
2001-08
» Reports: 463.
» Complaints filed: 38.

Karen Freeman-Wilson
2000 (served out final year of Jeffrey Modisett's term)
» Reports: approximately 300.*
» Complaints filed: 92.

*Includes backlogged reports from 1998 and 1999.