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    Barriers to Effectively Prosecuting Crime in Long-term Care Facilities

    Although Wisconsin law shows a robust legislative resolve to combat the abuse of elderly patients and residents in long-term care facilities, the reality is that there are many barriers to eliminating abuse and prosecuting the abusers. Police, prosecutors, and policy makers all need to understand the nature of elder abuse in order to protect a growing population of vulnerable individuals.

    William Hanrahan

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    Seeking Justice in Death's Waiting Room:
    Barriers to Effectively Prosecuting Crime in Long-term Care Facilities

    Although Wisconsin law shows a robust legislative resolve to combat the abuse of elderly patients and residents in long-term care facilities, the reality is that there are many barriers to eliminating abuse and prosecuting the abusers. Police, prosecutors, and policy makers all need to understand the nature of elder abuse in order to protect a growing population of vulnerable individuals.

    Sidebars:

    moldby William E. Hanrahan

    Lillian sat hunched over in her wheelchair. Her voice was faint; her energy had been almost completely depleted from our brief conversation. Laboring over each of her words, she fought an unending battle with her slipping upper plate. In mid-sentence, she paused and, with a quizzical expression, apologized for losing her train of thought. She then mustered enough strength to reach out and place her trembling hand on mine. As her bony fingers, covered with paper-thin skin, gave my hand a slight squeeze, she assured me, "Don't worry, I don't embarrass easily ... after all, look where I'm sitting ... right here in death's waiting room!" Then, raising her head for the first time, she looked me in the eyes and flashed an impish grin, stopping only to reinsert her false teeth.

    Lillian was a crime victim. At age 83, she was a resident of a 200-bed nursing home and had suffered severe neglect, resulting in malnutrition, bedsores, and broken bones. At this crime scene, however, there were no police officers, chalk outlines on the floor, or forensic technicians. In fact, the opportunity to gather any physical evidence had been lost forever. The only things that remained possible were a review of medical records and this attempted investigative interview. The interview, although warmly received, did not yield any information useful to the prosecution. As with so many other elderly victims, Lillian was unable to recall any of the details of her victimization. And, like many of the victims of institutional elder abuse, Lillian was shut off from the outside world and had been unable to report her maltreatment to the authorities. She suffered in silence for weeks until finally, upon her hospitalization, emergency room staff called the police.

    Lillian is a typical member of a unique class of particularly vulnerable crime victims: the frail elderly living in substandard long-term care facilities. The term "substandard," as used herein, is not a concept defined by law; rather, it connotes the type of facility most likely to be seen by prosecutors of elder abuse. Common features of a substandard facility include a consistently low staff to patient ratio, high employee turnover, increased dependence on temporary workers, an incompetent or absentee administrator, and a history of regulatory violations. The reality for residents of such a facility is that life becomes a daily struggle to maintain a mere shred of dignity; their medical, nutritional, and hygiene needs are routinely neglected, their privacy is lost, and their emotional wellness is compromised.

    Most people would be outraged by the inhumane treatment of Lillian and others who must call a substandard facility home. Sadly, to those who prosecute crimes of abuse and neglect in this state's facilities, Lillian's story represents an all-too-familiar scenario. Moreover, to the criminal prosecutors of this state, the unspoken truth is that, tragically, crimes of institutional elder abuse are unlikely to ever reach the criminal courts.

    Although Wisconsin law shows a robust legislative resolve to combat the abuse of recipients of health care services, the growing phenomenon of elder abuse will continue to present numerous formidable challenges to police, prosecutors, and policy makers.1

    Abuse Tolerated

    Perhaps at the most basic level, current barriers to effective prosecution may be said to originate from a tacit, societal acceptance of the substandard care of the elderly.2 It is axiomatic to prosecutors that, almost invariably, cases involving the intentional abuse of a patient occur when only the perpetrator and victim are present. By contrast, cases involving the neglect of a patient by health care staff appear to occur more often in the presence of other staff members. In a substandard facility, workers frequently do not even recognize inadequate care as aberrant, because the informal, negligent practices have, de facto, supplanted the facility's formal, written procedures. For a prosecutor of institutional elder abuse, the quest for justice often begins only when the consequences of abuse become subject to the scrutiny of an outsider. This outsider is often a new employee, a visitor to the nursing home, or emergency personnel.

    Unreported and Underreported

    Unlike other statutory schemes designed to protect vulnerable populations, the elder abuse reporting statute in Wisconsin does not mandate reporting.3 Thus, even when outsiders witness the abuse of a frail, demented, noncommunicative elder in the course of their profession, they are not required to report that crime to law enforcement authorities.4

    The Wisconsin Administrative Code, however, requires nursing homes in which suspected abuse has occurred to conduct an internal investigation and self-report the incidents of suspected abuse.5 Yet, in a substandard facility, rarely does such mandatory corporate introspection actually identify any significant systemic deficiencies that may have resulted in the abusive or neglectful incident. Rather, a finding of abuse or neglect, if made at all, generally affixes blame to the lowest paid, least educated, and, thus, most expendable employee, often a certified nursing assistant.6

    Untimely Involvement of Law Enforcement

    When a facility does self-report, as required, the complaint is filed with the Wisconsin Department of Health and Family Services (DHFS), not with the police. If criminal investigators are notified at all, notification typically occurs after the internal investigation, the preliminary finding of abuse, and the self-report to the DHFS. Invariably, that passage of time results in the loss and destruction of important evidence. After a homicide that was recently investigated, for example, the blood-stained sheets, essential to a determination of the cause of death, were taken from the hospital bed and discarded by housekeeping staff. In some suspected nursing home homicides, the decedents' bodies had been removed from the facility and embalmed, buried, or cremated before criminal investigators arrived. Similarly, after a recent sexual assault, potential DNA evidence was lost when the victim's pajamas were sent to the facility's laundry.

    Interestingly, however, in none of these cases was there any evidence to suggest that staff had conspired to obstruct a criminal investigation by intentionally destroying evidence. Rather, it appeared, quite simply, that a pragmatic nursing home administrator, ever mindful of the costs associated with the now-vacant bed, was simply attempting to ready the room for the next occupant.

    An Unfamiliar Beat for Police

    The early intervention of a police agency is almost essential to an effective prosecution. Police detectives often are well-trained in criminal procedure, the processing of a crime scene, and the forensic interview. Police traditionally, however, have not had primary responsibility for investigating nursing home crimes. Because police may lack consistent exposure to and have little specialized training in nursing home crimes, they often may correctly identify the essence of the criminal wrongdoing but fail to recognize that an actual crime had been committed.

    For example, paramedics accompanied by police officers rescued a frail elder who was found hanging by one leg, while tied with shoelaces to his wheelchair. The investigator concluded that, although the manner by which this elder was restrained was patently dangerous and obviously inhumane, "it did not appear that any criminal conduct was involved." The investigator, in closing his investigation, actually deferred to the judgment of the very professionals who should have been considered suspects, suggesting that "This matter is best handled internally within the facility."

    Similarly, in another facility, a male stranger had been found in the room of a noncommunicative, incompetent elderly patient. The patient's nightgown and diaper had been thrown on the floor of the room and the man was observed having sexual contact with the patient. The police supervisor on the scene correctly concluded that sexual contact occurred yet determined that it was "consensual," and thus the complaint was deemed "baseless."7

    "Intentional Neglect"

    In nursing homes, intentional neglect (an acceptable oxymoron in the legal lexicon) generally involves a low-level caregiver who fails to follow established procedure, resulting in injury to a resident. Often, this caregiver, upon realizing the magnitude of the failure, will attempt to conceal the injury and, in the process, exacerbate the consequences of that injury, thereby increasing the patient's suffering. The caregiver's apparent belief, which, in fact, may be well-founded, is that the injury, when discovered, will be treated without any inquiry, or at least with no conclusive finding as to its true origin.

    Malnutrition, Dehydration, and Bed Sores

    Along that same continuum of culpability, there exists a more insidious but equally devastating type of nursing home crime, whereby the decreasing quality of care in certain facilities has been found to gradually increase the incidence of patient suffering.8 This is especially true among a growing segment of the nursing home population that is particularly frail and in need of palliative care.9 These patients often lack mobility, due to a stroke or other such impairment. They may experience difficulty ingesting food due to a swallowing disorder or have a decreased desire to eat resulting from depression or because of missing teeth or improperly fitting dental appliances.10

    These at-risk patients depend on staff for personal assistance at every meal. What they receive in a substandard facility, however, is a wheelchair ride to the dining room, a plate of food placed in front of them, 15 minutes to attempt to eat, and then a ride back to their rooms. The logistics of feeding all residents within a designated time seems to confound and overwhelm the staff, even though the exact same battle is fought on a daily basis. Under these circumstances, the loss of body weight and body mass is as inevitable as the increased level of mortality among these elders.11

    A nonambulatory patient may lie in bed or be propped up in a wheelchair all day in the substandard facility. As the motionless patient waits for assistance, often for hours, in urine-soaked clothing, skin begins to break down, eventually resulting in gaping wounds in the flesh (decubitis ulcers). The minimum expectation of care for such patients is that nursing staff will provide repositioning every two hours, that the skin will be kept clean and dry, and that wounds, should they develop, will be effectively treated.12

    The Assignment of Blame

    The supreme challenge to prosecutors in charging such cases of criminal neglect is to ascertain where the greatest degree of criminal culpability lies. Obviously, in random cases of intentional misconduct, primary culpability resides with the perpetrator. Dehydration, malnutrition, and decubitis ulcers are not, however, the result of a singular act or omission. Rather, these conditions develop over time and often in the presence of numerous health care professionals. From the nursing assistant who ignores the nurse call light and patients' pleas for assistance, to the administrator who disregards patient acuity levels and who views the minimum staffing formula of regulators as an optional goal rather than as a requirement, all staff who have had contact with this patient may bear some degree of responsibility for the consequences of their poor judgment or indifference.13

    In State v. Serebin,14 then Milwaukee County Assistant District Attorney Charles Schudson engaged in a struggle to locate the epicenter of criminal culpability in a substandard facility. At the conclusion of a painstakingly thorough investigation, Schudson chose to charge the administrator, Stephen Serebin. In the course of trial, the jury learned of numerous internal memos, including one from the director of nursing to Serebin, that left no reasonable doubt as to where criminal responsibility should properly reside:

    "[I]f we did not have adequate staff we would have less time to walk our patients, we would not be able to feed them promptly, we would not be able to toilet them promptly. More patients would have to remain in bed ... consequently our patients would be subjected to the possibility of getting more skin breakdowns [sic], more contractures, and ... bed sores or decubiti."15

    At that time it was believed the Serebin decision would be the shot heard throughout the nursing home industry.16 In fact, in many ways, the industry did hear the Serebin message loud and clear. Unfortunately, what administrators of substandard nursing homes seemed to have learned from Serebin was to more effectively isolate themselves from the feedback of the care providers, thus providing a layer of plausible deniability between themselves and the criminal tortfeasors. It also appears, at least anecdotally, that Serebin promoted a risk-conscious system of charting, wherein employee observations of inadequate care - if documented at all - are kept in an indecipherable format in charts that are hidden from view of investigators.

    Since the Serebin decision, the once-resolute message of general deterrence has been diluted; the promise of enhanced accountability has dissipated; and the type of evidentiary paper trail followed by Schudson appears to have been swept away in the tailwinds of the Serebin controversy.

    Options Available to the Prosecution

    In the attempt to break down the walls protecting unscrupulous nursing home operations, the prosecution is armed with both a ball peen and a sledge hammer. The ball peen hammer is directed at the bricks and mortar protecting the transgressing individual, while the sledge may be used to completely dismantle the corrupt organization.

    In Wisconsin, a corporation - like an individual - may be charged with a crime.17 Since the corporation, as a fictional individual, must necessarily act through its agents, courts have found that agents who are acting within the scope of their employment may subject the corporate principal to criminal penalties.18 In the criminal courts, the corporation is not exempt from responsibility for the actions of agents even when the agent acts in excess of the authority granted by the corporation or even when the conduct is expressly prohibited by the corporation.19 Thus, a nursing home that tolerates the de facto, daily neglect of residents will not find shelter in corporate mission statements, written policies, or treatment protocols purporting to promote high standards of care.

    For nursing home enterprises that accept public funds through the Medicaid program the stakes are even higher. Section 49.49 of the Wisconsin Statutes provides that when a health care provider bills the government for health care services, the provider must have actually provided those services.20 Thus, when a nursing home admits an indigent elder, and the public is paying the bill, a reasonable expectation arises that the elder will not just be warehoused but actually will be cared for in a manner consistent with industry standards. The failure to meet those basic standards constitutes Medicaid fraud, potentially subjecting both those individuals acting in their individual capacity and those acting within the scope of their agency and the corporation alike to severe criminal penalties. Further, if it can be proved that a pattern of such fraudulent practices exists within a nursing home enterprise, the anti-racketeering prohibitions of the Wisconsin Organized Crime Control Act provide comprehensive criminal and civil remedies to the prosecution.21

    Profound Collateral Consequences

    Notwithstanding all of these tough-sounding options, in choosing to swing the sledge hammer of justice prosecutors would be well-advised to consider more than just the criminal code before springing into action. In a case of criminal neglect in which the only clear villain appears to be a corporation, the value of a swift criminal justice response can be completely negated if the full ramifications of such action are not adequately anticipated.

    Currently, under federal law, conviction of a corporation that provides care for Medicaid patients will result in mandatory exclusion of the corporation from this federally funded program.22 Although on the surface it appears to make considerable sense to exclude thieves from future opportunities to steal, the consequences of this exclusion are felt by the very individuals that this provision purports to protect. Even more significant to the residents of a nursing home, the facility is not just a provider of medical services but a place they call home, regardless of how dysfunctional and potentially dangerous it may be. The forced relocation of frail, elderly residents is often a frightening, disorienting, and isolating experience. And for many elders, such a move at this precarious stage of life likely would be their last. Transfer trauma has been significantly correlated in this population with an increased hastening of the onset of death.23

    Current Trend: Decentralization

    William E. Hanrahan

    Hanrahan

    William E. Hanrahan, Hamline 1988, is an assistant attorney general and the head of the Wisconsin Department of Justice Medicaid Fraud Control Unit. He also is an adjunct faculty member of the Marquette University College of Professional Studies and the Edgewood College Department of Sociology, where he teaches classes in criminal law and procedure. The views expressed herein are solely those of the author.

    The elderly population in Wisconsin is expected to drastically increase in the coming years.24 At the same time, if the current trend continues, fewer of these aging baby boomers will live in nursing homes.25 Instead, it appears that care increasingly will be provided in the home and in smaller scale facilities. These smaller facilities are thought to be more consumer-friendly, because they more closely resemble a warm and comfortable home environment than an institution. Gone are the long, cold, linoleum hallways, fluorescent lights, and the smell of urine. In are the tapestries, dried flower arrangements, and baskets of cinnamon-scented potpourri.

    The move to community-based facilities is attractive not just to consumers. The stampede into these facilities also has been embraced by public and private insurers, because the costs associated with placement in such facilities represent a significant savings compared to the cost of care in a conventional institutional setting.26 To the elder abuse prosecutor, however, this budget-balancing, "Norman Rockwellesque" vision represents an ominous confluence of a variety of significant elder abuse risk factors. The practice of having under-trained, uncertified, low-paid staff working alone with up to six residents on the overnight shift does indeed save dollars, yet these are some of the same factors that have been shown to result in a dramatic reduction in the quality of care.27 Not only is the presence of outsiders reduced in these facilities, but this continued movement toward decentralization undoubtedly will stretch regulators' limited investigative resources nearly to the breaking point, resulting in a marked decrease in oversight.28

    The Future

    As the elderly population begins to swell, it will be essential for law enforcement to rededicate scarce resources to combat the likely rise in cases of abuse and neglect. The creation of training programs, the establishment of specialized investigative and prosecutorial units, and the development of court procedures to accommodate the needs of those who suffer the infirmities of aging are likely to become some of the fundamental components of any enhanced law enforcement response.

    As more Wisconsin residents join the ranks of an increasingly vocal senior citizenry, they will demand protection from providers of substandard health care services, whether at home, in a nursing home, or in a community-based facility. As a result, future policy-makers, in their good faith attempts to contain the rising costs of long-term care, will be forced to reevaluate the efficacy of an increased reliance on self-reporting as a substitute for regulation. The obvious nexus between the reduction of oversight in long-term care facilities and the increased suffering of residents can no longer be ignored.29

    Finally, it will be incumbent on the health care industry itself to bring its considerable aggregate power to bear on its minority of members that tarnish the industry's reputation by demonstrating a callous indifference to human suffering by exploiting the defenseless.

    Until such time, Wisconsin prosecutors will endeavor to fight the good fight and, while never losing sight of the ends of justice in each case, through their efforts promote the development of a more compassionate, humane, and responsible approach to the provision of long-term care in Wisconsin.

    Endnotes

    1Wis. Stat. section 940.295 provides sweeping prohibitions against virtually every conceivable type of neglect and abuse occurring in almost all health care facilities, including in private homes.

    2Nursing Home Complaints (GAO/HEHS -99-80, March 22, 1999).

    3See Wis. Stat. § 46.90.

    4Except for wounds reasonably believed to be the result of criminal conduct under Wis. Stat. section 146.995.

    5Wis. Admin. Code § HFS 13.05.

    6For a general discussion of the status of certified nursing assistants, see Erin Hatton and Laura Dresser, Caring About Caregivers: Reducing Turnover of Frontline Health Care Workers in South Central Wisconsin, Oct. 2003.

    7"Consent" defined, Wis. Stat. § 940.225(4); contrast with Wis. Stat. § 940.225(2)(c) and 940.225(2)(g).

    8Morris, Jones, Morris, Fries, Proximity to Death, a Modeling Tool for Use in Nursing Homes.

    9Id.

    10American Dietetic Association, Combating Malnutrition in Nursing Homes - Testimony Before the Senate Special Committee on Aging, July 27, 1988; National Policy and Resource Center on Nutrition and Aging, Reducing Malnutrition and Dehydration in Nursing Homes, Oct. 1, 1999 - Sept. 30, 2000.

    11American Dietetic Association, Combating Malnutrition in Nursing Homes - Testimony Before the Senate Special Committee on Aging, July 27, 1988; National Policy and Resource Center on Nutrition and Aging, Reducing Malnutrition and Dehydration in Nursing Homes, Oct. 1, 1999 - Sept. 30, 2000.

    12Treatment of Pressure Ulcers Clinical Practice Guidelines, U.S. Dept. of Health & Human Services Agency for Health Care Policy & Research, Publication #95-0652, December 1994.

    13Robert Pear, Nine Out of Ten Nursing Homes Lack Adequate Staff, N.Y. Times (Feb. 18, 2003).

    14119 Wis. 2d 837, 350 N.W.2d 65 (1984).

    15Id. at 855.

    16John W. Pray, State v. Serebin: Causation and the Criminal Liability of Nursing Home Administrators, 1986 Wis. L. Rev. 339.

    17State v. Vulcan Last Inc., 194 Wis. 636, 217 N.W. 412 (1928).

    18Id.; State v. Steenberg Homes Inc., 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998).

    19State v. Vulcan Last Inc., 194 Wis. 636, 217 N.W. 412 (1928); Wis. J.I. Crim. 420.

    20Wis. Stat. § 49.49(1).

    21Wis. Stat. §§ 946.80 - .88.

    2242 U.S.C. ch. 7.

    23Jennifer L. Williamson, The Siren Song of the Elderly: Florida's Nursing Homes and the Dark Side of Chapter 400, Am. J. L. & Med. (1999).

    24U.S. Bureau of the Census, Wisconsin's Population Projections: 1995 to 2025.

    25Administration on Aging, A Profile of Older Americans: 2002, Table 30A.

    26Associated Press, U.S. Oversight of Medicaid Criticized, N.Y. Times (July 8, 2003).

    27Id.

    28Id.

    29Claims that increased Medicaid reimbursement, rather than increased oversight, results in better care lack empirical support. The New Math of Old Age: Why the Nursing Home Industry's Cries of Poverty Don't Add Up, U.S. News & World Report (Sept. 30, 2002).




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