Chicago Nursing Home Abuse Attorney Blog

How widespread is senior abuse? The National Institute of Justice, reported in May that about 11 percent of people ages 60 and older suffer from some kind of abuse every year. That's more than one in ten. The biggest category that people contacted by NIJ said they suffered in the last year was emotional abuse (5.1 percent), with 1.6 percent suffering physical mistreatment. Financial exploitation by a family member was reported by 5.2 percent of those contacted. Financial exploitation of seniors reportedly costs more than $2½ billion a year.

And the consequences? The chances of dying go up. Other studies say elderly victims of abuse, neglect and exploitation have twice the risk of dying of those who aren't victims.

There are many stories that point out the extent of the problem: cases of home aides giving lethal doses of drugs and of people using positions of trust to permanently "borrow" money from seniors,

All of this would seem to make enhancing the rights of the elderly an obvious choice for legislators - particularly since the number of people over 55 is the most rapidly growing demographic and seniors vote in larger numbers than other age groups.

But there are opponents to the legislation. They talk about skyrocketing federal spending, state's rights and creating more government bureaucracy. Some question provisions designed to check the backgrounds of people hired to be involved with older citizens, since most abusers are known to their victims.

Backers of the Senate's Elder Justice Act and similar House proposals are now linking the cause to healthcare reform. They say this makes sense because elder abuse increases healthcare costs and financial exploitation leaves many victims to rely on public aid. Prevention would therefore be good policy, saving money in the long run.

"This is prevention, which is a healthcare issue," Robert Blancato, who heads the Elder Justice Coalition, an umbrella group for more than 500 groups that support the legislation, told Kaiser. Coalition members include AARP, the American Bar Association and industry groups representing nursing homes and long-term providers.

And why should the federal government get involved? Because studies show state and local licensing agencies. long-term-care ombudsmen and adult protective service workers don't have the resources to handle the problems.

Researchers at Texas A&M University, in a report to the U.S. Justice Department, concluded that "the universal lack of resources, the enormous variation across jurisdictions and the low priority given to elder abuse and neglect make it difficult to see how significant progress can be made without federal standards and financial support."

The current healthcare bills would require states to conduct comprehensive screening of people working with the elderly. This includes those doing home-based care, an group which almost one-quarter of the states don't regulate at all. Additional states only do background checks on medical workers. The bills would also set criteria for hiring - and firing - persons who have committed or commit violent crimes, including an appeals process.

Michael Kosner, President
The Kosner Firm Chtd.

We hear about child abuse and wife beating more than we hear about senior abuse. They're all ugly concepts, but we are likely less aware of the elderly being mistreated since what we hear is generally limited to nursing home cases. This is a limitation that is being relaxed as both houses of Congress debate elder justice provisions in connection with health care reform.

Nursing homes provide the public face since, as Marsha Greenfield of the American Association of Homes & Services for the Aging recently said in an article written by Kaiser Health News, seniors are a more invisible population.

"Adult abuse is a lot harder (than abuse of other vulnerable populations) to get your arms around," she told Kaiser, an independent health news service. She added that this is because, while there are a growing number in community and group living arrangements, so many of the elderly are in their own homes.

The article added that other populations have become more visible as celebrities speak out on their problems. It noted that Nicole Kidman recently spoke at a congressional hearing on violence against women and that stars of "Law & Order: Special Victims Unit" appeared at a Washington rally about child abuse.

Meanwhile, a coalition of elder abuse groups could only muster ordinary seniors telling their painful stories of physical and emotional abuse and financial exploitation. It's too bad that fewer people - and publications - take time to listen when a celebrity isn't speaking.

The lack of support that comes with a lack of spotlight may be changing as federal lawmakers consider establishing federal law to support the fight against elder abuse.

The House's healthcare bill would provide for national background checks for people who care for the elderly. This would override a mixture of state laws that have let known offenders end up in positions of trust where they can do additional harm.

The Senate is considering a broader Elder Justice Act that would provide federal dollars to identify and investigate elder abuse locally, require long-term care providers to report possible crimes to federal authorities and create new oversight within the Department of Health and Human Services. These provisions have been approved by the Senate Finance Committee and are part of health legislation headed for floor debate.

These provisions would help, but only up to a point since studies show up to 90 percent of elder abuse cases involve family or trusted advisors and happen in private homes. And this will get harder to control as more elderly people are at home or in community and group living arrangements without the kinds of oversight mechanisms available when, for example, child abuse is suspected. There, professionals (teachers, doctors, etc.) outside the home are required to report suspected abuse to authorities.

We'll see how the legislation develops. After all, money, as with all things, remains an issue. The Senate Act has an estimated cost of $757 million over four years. Even though this is negligible compared to the cost of healthcare reform as a whole, and despite broad support that includes more than 500 advocacy groups, this could mean passage problems.

For more information on the legislation, click here or here.

Michael Kosner, President
The Kosner Firm Chtd.

When hunting for a place to spend their retirements, people tend to look for a degree of luxury. Consider, for example, The Park at Vernon Hills, a retirement community featuring independent and assisted living. It's not a nursing home, but concerns are similar.

Among the amenities The Park advertises as part of its carefree resort-style senior living is "the largest residential rain forest in the world - larger than a football field and more than six stories tall! It is a beautiful site to behold, maintained at a constant 72 degrees and 50 percent humidity. Residents walk along the winding quarter-mile walking path and see the spa, pool, café and more than 5,000 trees and shrubs."

We have no reason to believe The Park is anything but a responsible, caring facility, but even the best can suffer from the unexpected, reminding us again of the importance of vigilance - and the law of unintended consequences. In this case, the unintended seems to be Legionnaire's Disease.

The disease has a mysterious history but is now generally tied to bacteria that can survive in warm, moist, air-conditioning systems of large buildings, including hospitals - and apparently in artificial rain forests. It is spread by inhaling water mist, not by direct contact between individuals.

The Lake County Health Department and the Illinois Department of Public Health are investigating five cases - including two resulting in death - of the disease at The Park. The departments say that, so far, the outbreak is limited to that community. They have targeted the rain forest atrium as a possible source of the bacteria.

The Park has also hired an independent contractor to investigate - and has shut down the rain forest.

"We're taking every precaution and doing everything we can," Jane Woloson, executive director at The Park told the Lake County News Sun.

Michael Kosner, President
The Kosner Firm Chtd.

The Chicago Tribune's recent articles on the use of mind-altering drugs used unnecessarily to treat nursing home patients reported that even when the homes are cited by regulators, doctors who prescribe the medications get away free. This is despite incidents where the doctors prescribed such psychotropic drugs and increased dosage apparently without regard for the patient's true condition.

The article cites examples taken from Illinois inspection records. In one 2008 case, a woman considered "moderately impaired" by Altzheimer's disease was placed by relatives in Heritage Manor of Mount Zion, a facility southeast of Decatur, Ill. When admitted, this grandmother scored 23 out of 30 on a mental exam. Nurses found her pleasant and talkative.

However, she had crying spells and tried to wander off. Though she was not psychotic, her doctor prescribed two antipsychotic drugs, and later doubled the dosage of one of the drugs at least four times. That put her above its recommended limit.

Her family called in a neurologist who found her to be glassy-eyed and "catatonic," scoring zero on the mental test. The neurologist urged that she be weaned off the drugs. She was and became aware and responsive.

The Tribune said state regulators cited the home in November 2008 for the misuse of psychotropic drugs. Nothing happened to the doctor - the person primarily responsible for her medications. The newspaper found this pattern repeated many times when it reviewed 40,000 state and federal inspection reports filed since 2001 on 742 Illinois nursing homes: homes cited for misusing psychotropics even though the patients' doctors were responsible. Facilities must administer prescribed drugs as long as the orders meet state and federal nursing home regulations.

The Tribune noted many cases of doctors prescribing powerful drugs without sufficient reason and in doses too high. Cases also showed doctors failed to follow-up appropriately. They are required to see nursing home patients only once every 60 days, though some don't turn up that often. Nurses, who may not be trained in the drugs, are stuck monitoring side effects.

Unfortunately, as a former regulator with the Illinois Department of Public Health told the paper, "There's no downside for the physicians" who order inappropriate psychotropics. "Physicians don't have any citations against them." The Department enforces nursing home regulations but cannot discipline doctors, other than by reporting alleged wrongdoing to the Illinois Department of Financial and Professional Regulation.

Individuals can make similar complaints to Financial and Professional Regulation, though the Department can take quite a bit of time to act.

Or family members can enlist the help of an attorney to keep doctors attentive and their loved ones safe.

Michael Kosner, President
The Kosner Firm Chtd.

It happens even at the best of Illinois' nursing homes: misuse of drugs used to treat mental illness. At least that's what reporters from the Chicago Tribune have found.

Looking back through regulatory records from the last eight years, Trib reporters found that half of homes rated four or five stars by the federal government have been cited for situations involving psychotropic drugs - medications that change the way people's brains work. And some of the violations involved injury and death.

This emphasizes how hard it is for potential nursing home residents and their families to evaluate their options; problems are everywhere.

Among the citations the Tribune reported was one in 2003 of Lake Forest Place, a five-star facility, for improperly using or monitoring psychotropic drugs given to six residents. One 95-year-old was given an antipsychotic drug though he had no psychotic symptoms. Three other residents reportedly received psychotropic drugs without justification or consent - and at least one man was given such a medication and sleeping pills in larger than recommended amounts. Inspectors wrote that his private caretaker after one such dosing tried to wake him and couldn't.

Hickory Nursing Pavilion, another five-star home, was cited because a resident had her dosage of a psychotropic doubled after she complained about people smoking on the bus taking her to an outside program. The Tribune said she told inspectors, "The doctor came to see me for one minute, then left. Next thing I know, he was increasing my medication."

Staffs ignorant of the dangers of these drugs were also reported. The paper said nurses at a four-star home near Peoria were unaware of a test that can check residents for tics and tremors, and staff at another four-star facility, a few miles away, knew of the test but not how to give it.

Deaths involving psychotropics included a woman who died at the four-star Wauconda HealthCare and Rehabilitation Centre after having trouble breathing for three hours after being given an anti-anxiety drug. While it was a regular medication for her, the staff failed to recognize the severity of her reaction that day.

Then there was a man on multiple psychotropics at the four-star P.A. Peterson Center for Health in Rockford. He became lethargic and then, when staff withheld the drugs for several days without informing the patient's doctor, he worsened and died. The report said the doctor, after learning the drugs were stopped, said they couldn't do that without throwing a patient into withdrawal. Cited, the facility unsuccessfully appealed and then agreed to train staff and change policies about contacting doctors.

The facilities, which retain top ratings, all explained that things happen.

However, the lesson is that when we choose a home, we need to consider a wide range of things. Though the star ratings of the moment may be accurate, it's worth looking further back and asking questions. If nothing else, it will tell the nursing home you're watching.

Michael Kosner, President
The Kosner Firm Chtd.

A public meeting earlier this week took a hard look at the practice of putting younger adults with mental illnesses in Illinois nursing homes. Members of Gov. Pat Quinn's Nursing Home Task Force spent four hours listening to social workers, nursing home residents and advocates demanding that the practice stop. These undesirable residents allegedly include felons who police say assaulted, raped and even killed elderly and disabled housemates.

"A nursing home is not the place to test the rehabilitation of violent offenders. It is not the place to see if the fox can live peacefully in the henhouse," said Jamie Jimenez, an advocate with the Community Counseling Centers of Chicago, quoted in an article in the Chicago Tribune.
As well they should be, the governor's representatives were also upset by the violence in the state's facilities. "We have a situation that is not acceptable to us," said task force chairman Michael Gelder, Quinn's senior health policy adviser. He described the hearing as "a call for action," that call coming in the form of questions about, and criticism of, Illinois' long-term pattern of putting criminals with mental illness with the elderly and disabled. The shuffling of younger residents into nursing homes from jails, shelters and psychiatric facilities has put a definite strain on that industry and fails both the psychaitric patients and other nursing home patients.

"We are in crisis now," said Phyllis Mitzen, co-director of the Center for Long-Term Care Reform. "We find ourselves ... with a need to change the entire long-term care system."

Mark Heyrman, a board member of Mental Health America of Illinois, noted that psychiatric patients often receive substandard treatment in nursing homes and could be more cheaply and effectively housed in community mental health centers and assisted living arrangements. "Our long-term plan has to be to stop institutionalizing people in nursing homes who are only there because of a mental illness," he said.

The Tribune says Illinois nursing homes currently house about 15,000 people whose primary diagnosis is a mental illness, and one speaker estimated two-thirds of them could be in less institutional settings within five years if the state budgets for community rather than institutional care. Anthony Zipple of Thresholds mental health centers said Illinois has two pilot programs, though small ones "relative to need," that seek to move hundreds of mentally ill people out of nursing homes.

State law requires criminal background checks (and assessments of risk to other residents if felonies are found) of all incoming nursing home residents. However, a Tribune investigation said those screenings were inaccurate and often took longer than a year.

Other speakers called the current process farcical, and noted that nursing homes don't always report crimes that take place to the police. Moreover, police reports are generally not shared with state inspectors. They called for closer cooperation between the state and local law enforcement and prompt removal of licenses from homes with continuing patient-safety issues.

The task force will hold its next meeting next week (Oct. 29) in Springfield. We can only hope the state moves quickly to correct the kinds of conditions that led another speaker at last week's meeting to report he had been stabbed by the same person in two different nursing homes. In the meantime, be ready to question a home's policies in this area (Who do you let in?). It can keep your loved ones safer.

And if you have comments or recommendations, check out the task force's web site.

Michael Kosner, President
The Kosner Firm Chtd.

Each state inspects its nursing homes to make sure they comply with state and local laws. In Illinois, each home is inspected, on average, once a year. But once the inspection is made, what happens to the results? One thing we know, they are not sent automatically to the residents or the families of residents at a home.

MemberoftheFamily.net puts it this way: "Federal Regulations do not require State inspectors or the nursing home to notify patients and their families that a particular patient's care has been the subject of a survey violation. Even a finding of substandard care or actual harm does not require notification."

Illinois law doesn't require such notification, either.

Here's part of what the Illinois Department of Public Health says about the inspection process: "The Illinois Department of Public Health is responsible for ensuring nursing homes comply fully with mandatory state regulations. (U)nder a cooperative agreement with U.S. Department of Health and Human Services' Centers for Medicare and Medicaid Services (CMS), (IDPH) is also responsible for ensuring that facilities accepting Medicare and Medicaid payment for services rendered to program beneficiaries meet federal regulations and certification rules. Each year, (IDPH) conducts approximately 1,300 full, on-site licensure inspections of nursing homes and responds to approximately 6,000 complaints."

By the way, if you want to file a complaint about an Illinois nursing home, you can call the IDPH toll-free hotline at 1-800-252-4343.

IDPH notes that licensure inspections evaluate the fitness and adequacy of a nursing home, its equipment, staff, policies, procedures and finances. Illinois has some 200 surveyors employed in teams that each consist of a registered nurse, a nutritionist and an environmental health practitioner. These experts may be joined by life safety code experts and other professionals.

Complaint surveys are conducted by experts in the areas involved in charges lodged.

IDPH notes, "Illinois' licensure surveys are generally conducted on-site over a three- to four-day period during which the ... teams evaluate all aspects of resident care and nursing home procedures and practices, assessing facility compliance with more than 1,500 specific state and federal standards. (Some areas of care reviewed include resident rights, access to care, activities, assessment and care plans, health care and dietary services, housekeeping, staffing, quality of care and quality assurance.)

"The Department's evaluation may include an inspection of medical records, observation of resident care, inspection of all areas of the nursing home and interviews of residents, family members, staff or other individuals. (IDPH) also may (analyze) statistical data reported by nursing homes or (review) reportable event information or other notices filed with IDPH. Reportable events include administrator or director of nursing personnel changes; interruptions of three or more hours of services essential to the health and safety of residents; alleged or suspected crimes investigated at the facility by police; and all fires, disasters, deaths or other risks to resident life or health resulting form accidents or incidents at the facility. ...

"Nursing homes are inspected at least once every six to 15 months. The state average is once every 12 months."

Facilities are not told in advance about inspections.

IDPH shares its findings with nursing home administrative staff in an exit interview at the end of each inspection. The findings are also included in a survey report sent to the facility. If IDPH finds the nursing home failed to comply with licensure standards, it is cited for deficiencies, which it has to correct.

So, information is available but, since the home where our loved one may be staying isn't required to let you or the patient know about inspection results, we have to act to keep up with what's going on. Find out the home's policy on releasing reports. Talk to your loved one's doctor and to the person in charge of the home. If you don't get a satisfactory answer, an attorney can help.

Information on reports and a home's status are important. You have to know what you're dealing with to make sure a nursing home is giving proper care. You should be able to get inspection reports and the nursing home's response from the home or IDPH. You can ask IDPH for an inspection file by writing the Illinois Department of Public Health Freedom of Information Officer at 535 W. Jefferson St. Springfield, IL 62761 (Attn: Division of Communications)

In addition, federal inspection surveys are at www.medicare.gov/NHCompare/home.asp.

Michael Kosner, President
The Kosner Firm Chtd.

"We checked out the home and the rating on it when we put her in," Peggy Kennedy reportedly said after her mother, Sarah Wentworth, froze to death in February in the courtyard of her nursing home, The Arbor, in Itasca.

When the family originally checked, however, The Arbor didn't have the 22 violations uncovered in its last annual inspection by Illinois' Department of Public Health. It didn't have the two-star overall rating (five is the best, one the worst) rating that Medicare inspectors now give it. (There are private websites, like Member of the Family , which compile rankings for nursing homes across the country.)

Sarah's tragic story underlines the need to keep checking, but it doesn't solve the dilemma of what to do if a nursing home's conditions deteriorate. As the daughter of another Arbor resident noted in talking with the media, "It's difficult because at this stage my mom's 89 years old. It's very hard. It's hard to move them."

Hard but certainly not impossible - and sometimes necessary. IDPH regulates, licenses and - at least once a year - inspects the 1,200 long-term care facilities it's responsible for in the state. It reports conducting some 10,000 surveys annually, for licensing, complaints and reinspection. It also helps the U.S. Centers for Medicare and Medicaid Services certify the facilities for government payments. Every facility must meet the standards in the Illinois Nursing Home Care Act.

If a nursing home doesn't measure up, you can certainly find out.

Plus you can help improve a nursing home where your loved one lives by keeping track of conditions when you visit. Medicare's website provides a four-page checklist you can use to evaluate a nursing home - and to keep evaluating it. It guides you to be aware of the appearance of residents, their rooms and common spaces, how residents and staff get along with each other, the quality of food and activities, and the safeguards and medical care the home provides.

If the nursing home falls short, and won't listen to you when you raise issues, you can call the Department of Public Health's 24/7 Nursing Home Hotline (800-252-4343). It receives nearly 19,000 calls a year leading to more than 5,000 complaints

And then, if no-one listens, you can contact an attorney who specializes in nursing home law. We can go to bat for you with the nursing home. After all, preventing neglect and abuse is more important than punishing someone after it's too late to help your loved one.

Michael Kosner, President
The Kosner Firm Chtd.