Lax oversight, low fines

Credit: Bob Andres

Credit: Bob Andres

Few consequences from state when seniors harmed in care facilities

Lucile M. Brown took her final breath alone, in the middle of the night, outside the John-Wesley Villas care facility in Macon. No one noticed that the 92-year-old widowed great-grandmother and retired teacher had left the senior home, apparently in a state of confusion from her dementia. She was found lifeless at the bottom of an embankment, wearing a pink-and-white nightgown. An autopsy determined that Brown's neck was broken during a brutal fall down the steep hill.

An alarm was supposed to alert the staff at John-Wesley if a door opened, but it either failed or wasn’t heard. An aide doing a 4 a.m. check found Brown’s room empty and an exterior door open. By that time, Brown’s escape into the night had already resulted in her death.

A case involving a vulnerable senior’s unexpected death and a violation of regulations might seem like a serious case that would trigger an urgent investigation.

But in Georgia, a speeding ticket could have been a bigger deal.

» SEARCHABLE DATABASE: Details on every facility studied by the AJC

» MORE: The 'Unprotected' investigative series

It was six weeks before the state agency that licenses personal care homes and assisted living communities arrived and completed an investigation into whether the home had failed to properly care for Brown. Later, the agency cited the facility for what it deemed a relatively low-level violation over its failed alarm system and required a plan of correction.

It did not levy a fine.

Thousands of vulnerable Georgians like Lucile Brown live in private-pay senior care homes that the state of Georgia licenses and inspects. But those elderly residents can’t count on the state to carefully monitor the homes or to crack down on those that break the rules, The Atlanta Journal-Constitution has found.

Many other states require more of their senior care facilities, levy large fines for wrongdoing and close down facilities in the most serious cases, the AJC found.

In Georgia, the worst violations usually result in a penalty of just $601.

Credit: Family photo

Credit: Family photo

The state has only a small platoon of inspectors to routinely check its assisted living communities and personal care homes and respond to complaints. The public is kept in the dark about serious violations for months, as the oversight agency goes through a drawn-out process to complete reports before they are posted online, the AJC found. Unlike some other states, Georgia does not post information about fines or other sanctions.

By obtaining documents through Georgia’s Open Records Act, the AJC found that facilities can break rules over and over and face no serious consequences from the state. State regulators have the authority to freeze admissions and revoke licenses, but the AJC found that extremely rare.

As part of an investigative series published this fall, the AJC found hundreds of cases where residents suffered from neglect or abuse in assisted living communities and large personal care homes. Without a strong system in Georgia to check for compliance and hold operators accountable, Georgia's seniors remain unprotected from risks that threaten their comfort, dignity and safety.

» RELATED: Cursory death inquiry leads to family's quest for answers

» MORE: Gaps in Georgia laws leave residents with dementia most at risk

Gov. Brian Kemp said the state will address the problems exposed by the AJC.

“Our state values life at all stages, and every Georgian should be able to age gracefully and with dignity in their local communities,” Kemp said in a written statement. “These findings have brought to light serious issues involving care for aging adults.”

Kemp said the state agency that oversees senior care is already working on changes in response to the AJC’s series and has proposed a plan to improve transparency. The state’s response should not end there, he said.

“Going forward, more significant reforms will need to be addressed through the legislative process,” Kemp said.

» RELATED: Most states have higher standards for directors of senior care homes

» CONSUMER GUIDE: Resources for finding and evaluating a senior care facility

Rep. Sharon Cooper, the chairwoman of the House Health and Human Services Committee, plans to lead a push for changes and is already working on plans for a bill. Cooper said she anticipates resistance from an industry that has influence at the Capitol, but she thinks the problems detailed by the AJC are so stark that state leaders will address them.

“There’s a chamber full of people who have aging parents, and if they put themselves in the place of some of these families that have had these problems, I think they would certainly want to see these changes move forward on both sides of the chamber,” said Cooper, R-Marietta. “I’m going to work as hard as I can to get the legislation through.”

Overseers stretched thin

Georgia’s Department of Community Health is the protector-in-chief for the thousands of Georgians who live in senior care homes and other health care facilities.

Its staff responsible for inspecting assisted living communities, personal care homes, adult day care facilities and community living facilities is stretched thin, though. The agency has just 28 staff positions to oversee those 2,675 care facilities, though two of those positions are vacant. This staff must also investigate hundreds of complaints every year of unlicensed care homes, where risks of abuse and neglect are high.

Advocates, lawmakers and even operators of assisted living and personal care homes say the current DCH staff clearly isn’t adequate.

“Common sense tells all of us, as consumers, that the current number of inspectors couldn’t possibly be enough,” said Melanie McNeil, the state’s long-term care ombudsman.

State Rep. John LaHood, R-Valdosta, is a third-generation owner and operator of assisted living and memory care communities in Georgia.

LaHood said Georgia’s current rules and regulations may need some updates but overall are good. “They just need to be monitored and enforced more consistently,” he said. “More staff would be helpful in making that happen.”

In some cases, LaHood said, years will pass between routine inspections.

After inspectors do visit, it can take months for them to complete reports, he said. The delays frustrate those in the industry, he said, and keep consumers from getting the information they need.

“Consumers rely on timely and accurate information to make very important decisions for themselves and their loved ones,” LaHood said.

Even after facilities get copies of inspector findings and fines are levied, the information might not be made public.

DCH has said that it doesn’t post reports until regulators review them and facility operators get a chance to challenge findings. When reports are eventually posted on a state website, they’re difficult to find and hard to assess.

The lack of transparency leaves residents at risk and makes it difficult for families shopping for a facility to assess the records of homes in their communities.

» READ INSTALLMENT 1: A beloved father, a night of betrayal

» DEEPER FINDINGS: 20 deaths linked to violations at Georgia senior care homes

DCH has yet to tell the public about problems it found in July and again in September at Thrive at Frederica, though inspectors rated the violations so serious that the agency recommended that the St. Simons home's license be revoked.

The AJC discovered the state’s concerns after obtaining handwritten “adverse action” forms through the Georgia Open Records Act. The reports indicated that state inspectors had discovered nine high-severity violations.

Later, the AJC obtained the preliminary inspection findings through the Open Records Act. The documents show that the July violations concern a resident who was left unattended outside on a day when the temperature was close to 100 degrees and later died. The victim, Larry McDonough, suffered heat exhaustion in late May and died June 1. In October — the week after the AJC published a story on the case — DCH reported the episode to police.

Credit: Family photo

Credit: Family photo

The September preliminary inspection findings concern a memory care resident who wandered away from Thrive without anyone noticing for hours. DCH said the facility failed to notify police or the agency and the staff wasn’t trained on how to handle elopements; the memory care doors were left unlocked for 29 hours; and although an alarm sounded when the resident went out the front door, a staff member shut it off without looking to see if anyone had left.

Thrive is fighting the state’s action, and a hearing is scheduled for January. In documents filed with the Office of State Administrative Hearings, Thrive disputed the state’s citations and said DCH didn’t follow procedures.

There’s no public DCH report on another incident the AJC found after obtaining police records on the facility.

They show that in August 2018, the director called police to say she was advised by DCH to file a report on a “false” allegation of abuse. But the police report says that a video showed a caregiver slapping a resident who was in a wheelchair.

Thrive, an Atlanta-based operator with several facilities in Georgia, didn’t respond to the AJC’s request for an interview. Its website says the facility is like a “resort” with “world-class amenities.”

“We understand that older adults and their loved ones depend on us not only to live, but to live well,” Thrive’s website said. “It’s a challenge we welcome — every day.”

Some states, including Florida, alert residents and the public more quickly to potential problems. Florida’s website also offers consumers a wealth of information on everything from details about the facility’s owners, to what kinds of activities the facility provides and even whether an assisted living home has an emergency power supply. The website also gives details on fines, going back years, and settlement documents related to fines are available with one click.

"There's a chamber full of people who have aging parents, and if they put themselves in the place of some of these families that have had these problems, I think they would certainly want to see these changes move forward on both sides of the chamber." —Rep. Sharon Cooper, R-Marietta, on the political chances of increasing oversight in Georgia's senior care industry

Some lawmakers acknowledge that DCH is falling short of providing important information about the senior care facilities.

“They are supposed to be putting all the inspection reports on their website and making timely visits to all facilities,” said Rep. Jesse Petrea, R-Savannah, chairman of the Human Relations and Aging Committee. “Unfortunately, that is not happening, and that is unacceptable.”

He said the General Assembly needs to give DCH more money to fix its website and hire more inspectors. “We have to give the department the resources to do this job,” he said.

When the AJC asked DCH Commissioner Frank W. Berry how he planned to improve the oversight system, he said he wanted to address the information gap. “Transparency is the big one,” he said. “I think the No. 1 priority always is the health and safety of the individuals we serve. I think the transparency will begin to improve that and accountability.”

DCH proposed a new rule this month that would require each assisted living facility and personal care home to post on its website a copy of any inspection in the previous 18 months.

That proposal is both an attempt to improve transparency and an acknowledgment that Georgia’s website is falling short. However, the plan doesn’t address the long delays in finishing reports that frustrate operators and leave consumers in the dark.

‘Shockingly low’ fines

In reviewing disturbing cases outlined in state inspection reports, the AJC identified at least 20 where a violation was linked to residents' deaths.

One suffocated after being pinned between a bed and a bedrail that wasn’t supposed to be used. Another died after being served food that a doctor said was off limits. Another death involved a person who was supposed to be monitored closely while bathing who suffered severe burns after staying in a hot shower unattended. In two cases, residents died after falling from beds and being injured when caregivers stepped away for supplies. Others died after their caregivers waited too long to call an ambulance or a doctor. Another resident had sky-high blood pressure readings, but the facility didn’t handle the situation properly, state inspectors found, and the resident died the next day of a stroke.

The AJC tracked the cases to determine what kind of penalties were imposed. State law gives DCH the authority to suspend or revoke a license, or impose a fine that is limited to a total of $25,000 for a single inspection. DCH has an “enforcement matrix” that sets $601 as the fine amount for the most serious violations for an initial citation. It grows to $1,000 for a repeat serious violation.

In more than half of the death cases, the state imposed a penalty of $601, the AJC found. In only three of the death cases did the penalty top that amount due to multiple violations.

That’s what the rules call for, DCH said in an email to the AJC.

But that’s a rule that needs to change, says the Georgia Council on Aging, a 20-member body created by the General Assembly to advise elected officials and state agencies.

“Six hundred and one dollars for a violation which has caused death or serious harm is shockingly low,” said Vicki Vaughn Johnson, the council’s chair.

Credit: Picasa

Credit: Picasa

The council plans to lobby for a significant increase in fines at the upcoming legislative session.

The AJC found six cases linked to deaths where records show no fine was imposed at all. The agency did not rate the violations as serious enough to merit a penalty.

Records obtained from DCH did not show fines being imposed in the majority of some 300 cases where violations meant a resident was either physically harmed, abused or exposed to dangers. Those include cases where residents with dementia left a facility without the staff noticing, and cases where residents failed to get vital prescription medications or got the wrong medications.

Other nearby states, including North Carolina, Tennessee and Alabama, have forced facilities to close or barred them from admitting new residents after serious incidents.

"Consumers demanded change once they became aware of the automakers' practice of prioritizing profits over human lives." —Melanie McNeil, Georgia's long-term care ombudsman

Alabama in September forced a company to sell or close its facility in Montgomery after its staff left an 83-year-old on a facility van for five hours in June and then falsified records to say she was in the facility after the van ride. The resident suffered heatstroke and died from complications.

North Carolina inspectors responding to a complaint about low staffing discovered a host of problems and quickly suspended the facility’s permit. In Tennessee, an inspector found 14 residents of a home didn’t get their medications because there wasn’t enough staff, and some didn’t get timely showers and incontinence care. The state levied a $29,000 fine and suspended admissions until the home corrected its deficiencies.

It seemed like Georgia was going to crack down last year on Sunrise at East Cobb after one of its caregivers was criminally charged in the death of a World War II veteran. State inspectors issued a blistering report citing serious violations that went beyond what happened with the veteran and told Sunrise it planned to revoke its permit.

But Sunrise, which is part of a national chain where residents often pay more than $6,000 a month for care, fought the sanctions. DCH last December agreed to a settlement in which Sunrise promised to provide more oversight and pay $20,000, according to documents obtained through the Open Records Act.

Sunrise at East Cobb stayed open, and the case was closed.

‘Profits over human lives’

McNeil, Georgia’s ombudsman, said the worst operators are like automakers who continued to manufacture defective cars when it was cheaper to pay penalties than make cars safe.

“Consumers demanded change once they became aware of the automakers’ practice of prioritizing profits over human lives,” she said. “Just as happened with automakers, we must hold long-term care providers accountable in a meaningful way when provider practices result in serious injury or loss of life.”

State officials from the governor on down say they want to pass reforms when the General Assembly convenes next month. “I anticipate legislative proposals on this topic in the upcoming session,” Lt. Gov. Geoff Duncan said, “and look forward to working with the Senate to create practical solutions that will protect Georgia’s most vulnerable citizens.”

The question is how far Georgia will be willing to go. Some lawmakers don’t like the idea of big fines or new requirements. They say that could up the price tag for consumers and shut out some seniors who want to get assistance with daily activities and medications in a residential setting, not a nursing home. Advocates had to fight for years to get Georgia to even allow assisted living communities, which offer a care level between personal care homes and skilled nursing facilities.

While they are contemplating whether changes are needed, Gail Walker hopes they will keep her family in mind. Walker is the daughter of Lucile Brown, who died after her violent fall outside the John-Wesley home.

Brown lived a full, long life that revolved around her family, her church and her students. She had such a love for teaching that she continued to substitute well into her 80s. When she died, students who had been in her classroom decades before posted remembrances online that praised her as a favorite teacher whose lessons stuck with them forever.

Walker was surprised that Georgia took weeks to investigate what happened to her mother. “I would have thought because there was a death, they would have inspected right away,” Walker said.

She had gone to great lengths to make sure her mother was safe and well cared for. In addition to paying John-Wesley thousands of dollars every month, she hired a private caregiver who was there all day to provide one-on-one companionship and care. Walker drove to Macon from Atlanta every week to see her mom.

» READ INSTALLMENT 2: Suffering behind the facade

» READ INSTALLMENT 3: Prosecutors not alerted to potential crimes

Though the sheriff called the morning her mother died, she said the state inspectors never contacted her. She said an executive with John-Wesley called to report that Georgia didn’t find the facility responsible for her mother’s death, which surprised Walker.

But Walker said her mother’s death should have resulted in a more serious sanction.

“They should have been held accountable,” she said.

Walker said she believes her mother was confused when she got out of bed in the middle of the night and was probably trying to go to the bathroom. The exterior door she pushed open should have been secured, Walker said, and the facility should have had a fence to protect residents from the steep hill near the building, she said.

But Walker said that even if the state had acted and imposed its typical fine in a death case, that wouldn’t have made her feel much better.

“That’s absolutely ludicrous that the most serious offense only gets a $600 fine,” she said.

Walker said the facility let her down, but so did the state. She’s troubled that Georgia has not placed a higher priority on its vulnerable seniors, and she wants the state to act.

“To me, the state of Georgia is responsible when they issue a license to somebody to operate an assisted living or a nursing home or any kind of senior home,” she said. “They are responsible at the end of the day for making sure those people are operating it the way they are supposed to.”


Five areas of concern to advocates

1. State fines

Even the worst violations, including cases with death or harm, rarely result in significant fines, if fines are issued at all. The maximum fine issued for the most serious violations is typically $601.

“I think our fines are ridiculously low,” said Rep. Sharon Cooper, R-Marietta. “If it doesn’t hurt enough financially, people seem to just take this as a part of doing business. And so that you have to make the fines enough, that they hurt enough, that they’ll get people’s attention.”

2. State inspectors

The Department of Community Health (DCH) doesn’t have enough inspectors to effectively do its job. More than a year can pass between routine inspections, and the agency can be slow to respond to complaints and fail to thoroughly investigate them.

“DCH needs more people conducting surveys of facilities and investigating complaints so that the work can be done more promptly,” said Vicki Johnson, chair, Georgia Council on Aging. “It’s a critical job, not only so the state can ensure compliance but also so consumers can identify better facilities and avoid making bad choices.”

3. Caregiver staffing

Some of the most harmful problems at facilities stem from staffing shortages and poor training, the AJC found. Staffing ratios mandated by the state are too often inadequate, particularly if facilities have a significant number of frail residents or those with dementia.

“We’re working with the associations to figure out best national trends,” said DCH Commissioner Frank W. Berry. “Making sure we’re in compliance with what those are.”

4. Transparency

The state’s regulatory website is cumbersome, and it can take months before inspection reports are posted. Even then, reports are often difficult to understand, and if the state doesn’t substantiate a complaint, there’s no information. A state proposal calls for reports to be posted on facility websites, but there’s still more to be done to help families make informed decisions.

“It is important for consumers to know the results of official inspections … Results should be provided in a way that consumers and providers can understand, to show that the facility is in compliance when it is, and to detail the ways it is not in compliance when it is not. Consumers cannot make good choices for themselves and their loved ones when they don’t have a clear picture of the facility’s compliance,” said Melanie McNeil, Georgia’s long-term care ombudsman.

5. Reporting gaps

Allegations of abuse and neglect in assisted living facilities and large personal care homes routinely fail to get reported to police and prosecutors, the AJC investigation found. Also, facilities regularly fail to report serious allegations involving harm or injuries to state regulators. These reporting gaps concern law enforcement officials and advocates for the elderly. They worry that too many cases of elder abuse and neglect may not get scrutiny, including some suspicious deaths. The Prosecuting Attorneys’ Council of Georgia said it supports efforts to close gaps in reporting potential crimes at senior care facilities to law enforcement and prosecutors.

“We are happy to work with our partner agencies and associations to create a simple, standardized and efficient way of reporting and developing training to make sure everyone knows the importance of safeguarding residents against abuse, neglect and exploitation,” said Pete Skandalakis, the council’s executive director.