By Loree Cook-Daniels

The General Accounting Office (GAO) released a new report, “Nursing Homes: More Can Be Done to Protect Residents from Abuse,” at a March 4, 2002 Senate hearing on the subject.

GAO studied 158 physical and sexual abuse allegations lodged against nursing homes in Georgia, Illinois, and Pennsylvania in 1999 and 2000. The study looked at the existing systems to both prevent and address abuse.

With regard to prevention systems – conducting background checks and tracking abusive employees -- GAO found a number of problems. Although all three of the studied states require nursing homes to conduct criminal background checks on potential employees, only one ever requests federal background checks that might pick up convictions from other states (and that state only requests such checks for people who have lived outside the state within the past two years).

GAO noted several limitations of existing nurse aide registries:

• They are typically not notified when criminal backgrounds are uncovered, so do not include such findings.

• They cover only nurse aides, even though 10 of the 158 cases GAO looked at were allegedly perpetrated by non-licensed, non-certified employees.

• Seventeen percent of the cases GAO looked at had not made it to the nurse aide registry for at least 10 months (and up to 2+ years) after the allegation was made.

• At least one web-based registry of confirmed abuse by nurse aides did not include all known confirmed cases.

GAO also found a number of problems with the systems set up to address abuse once it has occurred. For one thing, about 50% of abuse allegations known to nursing homes were referred to the state survey agency outside the two-day mandated reporting window. This is problematic because crime evidence decays quickly. States were found to differ in their interpretation of the Centers for Medicare and Medicaid Services (CMS) definition of abuse as “the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” One of the studied states tends to not class as “willful” physical harm inflicted by an employee who is responding to having just been hit by a resident. Another state tended not to take action when there were no apparent physical injuries.

Sanctions against nursing homes for abuse were relatively rare. Of the 158 case files GAO reviewed, only 26 homes were cited for deficiencies related to the abuse. Only one civil monetary penalty was recommend-ed, and even it was reduced on appeal.

The report concludes with five recommendations that could be implemented by the CMS administrator:

• Ensure that state survey agencies immediately notify local law enforcement agencies or MFCUs when nursing homes report allegations of resident physical or sexual abuse or when the survey agency has confirmed complaints of alleged abuse.

• Accelerate the agency’s education campaign on reporting nursing home abuse by (1) distributing its new poster with clearly displayed complaint telephone numbers and (2) requiring state agencies to ensure that these numbers are prominently listed in local telephone directories.

• Systematically assess state policies and practice for complying with the federal requirements to prohibit employment of individuals convicted of abusing nursing home residents and, if necessary, develop more specific guidance to ensure compliance.

• Clarify the definition of abuse and otherwise ensure that states apply that definition consistently and appropriately.

• Shorten state survey agencies’ time frames for determining whether to include findings of abuse in nurse aide registry files.

For the most part, CMS said it would implement or consider four of the recommendations. Regarding the definitions of abuse, CMS restated that the states should use the federal definition when performing a federal survey. GAO felt this did not go far enough.

Senate Special Committee on Aging Chair John Breaux issued a news release at the end of the March 4, 2002 hearing Safeguarding Our Seniors: Protecting the Elderly from Physical and Sexual Abuse in Nursing Homes,” calling upon CMS to “issue a monthly written report to the [Senate Special] Committee [on Aging] on its progress implementing the recommendations of [the] General Accounting Office Report.”