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Nursing Home Complaints Are Rarely Investigated

In Illinois, state legislators are considering a bill, backed largely by the nursing home industry, that would prevent people who report cases of elder abuse or neglect from remaining anonymous. But the real problem, in Illinois, New York and elsewhere, is that most of these complaints will never be investigated in the first place.

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Nursing Home Complaints

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Nursing Home Residents May Lose Right To Anonymous Complaints

Supporters of the proposal, like state representative Mike Unes, say a loss of anonymity would prevent unfounded allegations, according to US News & World Report. Unes' logic is pretty simple: people are less likely to make false accusations when their real names are attached to those accusations.

That sounds plausible, and recent statistics out of the state seem to lend credence to the Republican lawmakers thinking. According to numbers provided by the Illinois Health Care Association, around one-fifth of the nursing home complaints filed in 2014 came from anonymous sources. Of those anonymous reports, the industry group says, about 31% were substantiated in the same year. For non-anonymous complaints, nearly 40% were substantiated.

Superficially, the industry group's conclusion, that non-anonymous complaints are more likely to be true than anonymous ones, looks accurate. But the reality isn't that simple. While Veronica Vera, spokesperson for Illinois' Department of Public Health, didn't go so far as to accuse the industry group of fudging the numbers, she did report that the validity of complaints, anonymous or not, was almost exactly the same in 2014. The real trouble is that complaints aren't being investigated at all, and have no way of being substantiated in the first place.

Anonymous Or Not, Complaints Aren't Being Investigated

Opponents of the bill, including the state's own Department on Aging, think it's nothing less than a failure to put elderly patients before the "convenience" of nursing homes. But this is a complex issue, one that we shouldn't immediately dismiss as a scheme put forward by unscrupulous nursing homes. Fortunately, other states have attempted to address the issue in the recent past.

Pennsylvania, where almost 40% of nursing homes rank at just one or two out of five stars in Medicare's quality rating, recently started allowing anonymous complaints, leading to a 33% increase in total complaints. How many of those allegations were ultimately substantiated by state investigators?

It's hard to tell. Only the results of federal investigations are made public as a matter of course. State investigators, on the other hand, only follow up with the person who made the complaint in the first place. But details that manage to trickle out from Pennsylvania's Health Department aren't encouraging.

Why, for one, are 92% of the complaints filed in Philadelphia dismissed as unfounded, a shocking statistic Community Legal Services of Philadelphia published in a June 2015 report. The obvious answer, that 92% of the complaints are actually unfounded, is a little hard to swallow. Especially when you take a look at the results of unannounced inspections conducted by the Department of Aging, which may or may not be inspired by a resident's complaint.

Of the 46 licensed elder care facilities registered in Philadelphia, not one passed its last inspection with flying colors. In fact, Oakwood Healthcare & Rehabilitation received the lowest number of total citations at 16, 14 of which had the potential to cause residents at least "minimal" harm. You can access these citation records yourself here. And many of these problems, ranging from insufficiently safe buildings to staff treatment of residents, are recurring ones, infractions for which the same nursing home has been cited on multiple occasions.

At least for Pennsylvania, anonymity doesn't seem to be the heart of this issue. It's government officials inability to follow up on complaints appropriately, or even take them seriously in the first place.

In New York, Lax Enforcement Underwrites Unsafe Conditions

Residents in New York have faced similar challenges. The state's Monroe County is home to 34 nursing homes, and between 2012 and 2015, those facilities were cited for a total of 768 state and federal violations, according to a Democrat and Chronicle investigation. Nearly 40% of those violations were repeats, the home had been cited under the same regulation in an earlier inspection.

Elder advocates, though, are quick to note that New York's inspection process may not be the problem. Enforcement is the real issue, especially in the area of fines, which state officials have every right to levy against nursing homes that have been cited for violations. But in its own investigation, the New York State Office of the State Comptroller found that the Department of Health failed to levy any fine for "well over" 80% of violations. When the Department did assess fines, it did so late, up to 6 years after the violation was cited.

Most Complaints Go Uninvestigated In New York

Let's take a look, not at inspections initiated according to state and federal law, but investigations in response to resident and third-party that should be used in a nursing home

In 2013, the New York Department of Health received 10,695 individual complaints. It investigated only 4,104, a little over 38%. 2014 saw even more complaints, with 11,098 filed, but only 39.6% were investigated. In 2015, a year in which the Health Department received more than 64% fewer complaints, 3,954, the agency only managed to investigate 29.8%.

The Health Department says that the sheer volume of complaints makes looking into each one very difficult. But as we just saw, in statistics released by the State Comptroller, a significant decrease in total complaints was actually accompanied by a decrease in investigations. In fact, the proportion of complaints that are investigated in New York has been dropped reliably over the last nine years, and critics largely point the finger at the state's underfunding of long-term care ombudsmen, resident advocates who are often brought in to investigate.

Complainants in New York have an option to "remain anonymous" when filling out the state's Nursing Home Complaint Form, but a notable caveat, that "it may be necessary to share the nature of your complaint or the resident's name or your name with the facility," makes that reassurance fairly toothless.

Justice Department Takes Action

On March 30, 2016, the US Department of Justice announced the establishment of 10 Elder Justice Task Forces, teams of federal, state and local prosecutors that will enhance efforts to pursue nursing homes that provide “grossly substandard care” to residents.

Each task force will be comprised of reps from the US Attorneys' office, Medicaid fraud investigators, state and local prosecutors, Health and Human Services officials, Adult Protective Services employees, long-term care ombudsmen and law enforcement agents, coordinating efforts on a regional level to corral negligent and harmful nursing homes.

A task force will be devoted to each of the following regions, which correspond to federal district court systems:

Residents in Pennsylvania are certain to embrace the Justice Department's new presence, but New York's absence from the list may seem conspicuous to some, given the state's inability to enforce the regulations on its own.

Double Standard

To us, the debate in Illinois over fraudulent complaints sounds a lot like voter fraud, a possibility legislators love to gripe about, but one that never actually happens. If it did happen with any regularity, how would we know? State officials fail to investigate more than half of the nursing home complaints they receive.

In fighting for a name on each complaint, states apply a double standard. When states require complainants to provide their personal information, the demand implicitly asks seniors and their loved ones to accept personal accountability for their statements. But for state regulators, there's no such accountability.

When pressed by the Democrat and Chronicle to answer for the homes with repeat deficiencies, representatives from both the New York Department of Health and the US Centers for Medicare and Medicaid "refused to make officials available for on-the-record interviews," the paper wrote.

Beyond quibbles over statistics, the logic behind Illinois' bill to ban anonymous complaints neglects a key fact about the specific circumstances under which nursing home abuse occurs. Elders are vulnerable, and many depend for survival on the very people, both family members and elder care facility employees, who mistreat them. Reporting that mistreatment? It can mean "losing the care" you rely on, according to David Besnette, an elder rights advocate who recently spoke to US News & World Report about Illinois' proposed bill. Staying anonymous might be the only reason some elderly residents report abuse or neglect at all.

Laurence P. Banville
Date Published: February 28, 2017
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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