South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

I read an interesting article from the Oakland Tribune about how nurses move to avoid the consequences of misconduct. There is a dangerous gap in the way states regulate, license, supervise, and sanction nurses: They fail to effectively tell each other what they know.   As a result, caregivers with troubled records can cross state lines and work without restriction, an investigation by the nonprofit news organization ProPublica and The Los Angeles Times found.

Using public databases and state disciplinary reports, reporters found hundreds of cases in which registered nurses held clear licenses in some states after they'd been sanctioned in others, often for serious misdeeds. In California alone, a months-long review of its 350,000 active nurses found at least 177 whose licenses had been revoked, surrendered, suspended or denied elsewhere.

State regulators aren't using their powers to seek out this information, or act on what they find, the investigation found.

By simply typing a nurse's name into a national database, state officials can often find out within seconds whether the nurse has been sanctioned anywhere in the country and why. But some states don't check regularly or at all. The failure to act quickly in such cases has grave implications: Hospitals and other health care employers depend on state nursing boards to vouch for nurses' fitness to practice.

Because there is no federal licensing of nurses, each state sets its own standards on punishable behavior. In general, states can discipline a nurse based solely on the actions taken by another state. But they vary widely in how quickly — or harshly — they act on this information, according to interviews with regulators in 14 states.

Delays in several states left Craig Smart free to practice. In 2000, he surrendered his license in Florida after testing positive for cocaine and flunking a treatment program. It took eight years for five other states in which he was licensed to respond to Florida's action. California was the last to revoke his license, in 2008, after he had practiced here for several years.

Even when states share borders, they sometimes fail to heed each other's disciplinary actions. At least 10 nurses, for example, hold clear licenses in Massachusetts despite being disciplined next door in Rhode Island, including suspensions for drug thefts and violence.

There is ample information available for states to identify nurses disciplined by other jurisdictions. Two separate databases attempt to track disciplinary actions from every state. States are required to report to one, run by the federal government, within 30 days of taking an action. Reporting to the other, operated by the National Council of State Boards of Nursing, is voluntary.

Each database can be programmed to alert a state whenever a nurse it has licensed runs into trouble in another state.  When checking a nurse's record, nursing officials say they almost uniformly use the council's database; it's free and the government's is not. In fact, federal statistics show that nursing boards accessed the government database fewer than 300 times total in 2007 and 2008.

In addition, ProPublica and The Los Angeles Times found that the federal database is incomplete, despite the requirement that all states report discipline to it. Many actions appeared to be missing when reporters tried to match known cases by date of discipline to a version of the database in which confidential information had been removed.

The council cannot force states to submit names, and states have a financial incentive not to: They make money by charging nurses to verify their licenses, test scores and training to authorities in other states. For example, a nurse licensed in California who wants credentials to practice in Arizona must pay California $60 to confirm her background. Those sorts of checks netted California nearly $1 million in fiscal 2009. New York, which charges $20 a check, earns more than $250,000 a year.

When states turn over their lists of licensed nurses to the national council, that group earns such verification fees. "The decision to join is a revenue loss for them," said Kathy Apple, the council's chief executive officer. "That's difficult for some states."

Reporters went further, checking the full roster of 350,000 licensed nurses against a public version of the council database. They found that at least 643 California nurses had sanctions elsewhere, including the 177 whose licenses had been revoked, suspended, denied or surrendered.

Jose Martinez, who surrendered his license in Texas in July 2008 after being accused of performing a rectal exam on an 11-year-old girl without a doctor's order or a witness present. In a letter to the Texas board, Martinez acknowledged his misconduct. "Yes, I made a mistake and, yes, I am guilty. After 4 years as a tech and 12 years as a nurse I slip and fall. "... I guess I deserve what is coming to me." His California license is active, without restrictions, and does not expire until July 2010.

Randy Hopp, who was convicted in 2004 of assaulting a nursing home resident in Minnesota. It was the fourth facility since 1998 at which he had been accused of mistreating a resident, records show. The nursing boards in Minnesota and Missouri placed him on probation, and Kansas imposed restrictions on his practice. Hopp surrendered his license in Texas. In California, his license remains clear.

In the past the board took a median of 13 months to file public accusations against nurses after their licenses were first revoked, surrendered, denied or suspended by another state, according to a review of 258 such cases since 2002.

Three of these nurses got work and stole drugs from California hospitals after they had surrendered their licenses across the border in Nevada for previous wrongdoing there.

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Chicago Sun-Times had a great article about how administrators in Illnois (like most states) do not get disciplined when  the administrators allow or permit abuse, neglect, or poor care at nursing homes.  Illinois nursing home administrators are rarely disciplined even though the state Health Department, which investigates nursing home care, refers dozens of cases a year to the agency in charge of meting out punishment.

From 2005 through 2009, the Illinois Department of Financial and Professional Regulation received 407 complaints from the state's health department. Only three resulted in discipline for nursing home administrators.  THREE OUT OF 407 COMPLAINTS. 

Advocates for nursing home residents say that's a sign of a broken system.  "Less than 1 percent is ridiculous," said Toby Edelman, an attorney with the nonprofit Center for Medicare Advocacy. "There should be more accountability on the part of the administrators."

The numbers were put together by a task force Gov. Pat Quinn formed after a series of assaults, rapes and murders in Illinois nursing homes. The task force is looking into why so few cases result discipline, said Michael Gelder, Quinn's senior health adviser. "We're absolutely very concerned about that," he said.

Advocates for nursing home residents are now watching to see whether Jamie L. Lloyd, administrator of Maplewood Care in Elgin, will be disciplined after a 21-year-old mentally ill resident sexually assaulted a 69-year-old woman at the home. Lloyd did not do a proper background check.  Had Lloyd checked, he would have discovered the former resident had an outstanding arrest warrant on felony battery charges.

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The second part of the Star-Tribune's investigation into fatal falls at nursing homes concentrate on the lack of sanctions.  Seventeen days after Agnes Johnson died, state investigators drove out to the White Community Hospital and Nursing Home to interview the staff.  An aide told them she had turned away momentarily while using a mechanical lift to maneuver Johnson from her bed to a wheelchair, and Johnson slipped from the device's sling to the floor, breaking her shoulder and thigh. The OHFC concluded that she died from neglect. It concluded that the aide violated the home's guidelines requiring two people to perform lifts, according to a report. It also determined the nursing home had not properly trained the aide to use the lift.  Despite the mistakes and Johnson's death, the OHFC did not cite the nursing home for violating state and federal regulations. The state found neglect in 17 cases statewide since 2004 where residents were seriously injured or died after falling out of lifts. It has issued citations for errors in only three cases.

When a Minnesota investigation finds that a nursing home was at fault, regulators require nothing more of the nursing home if it fired the worker involved or developed a corrective plan before investigators arrived. Minnesota rarely issues fines against nursing homes.  That is why some health care advocates question the OHFC's effectiveness in holding nursing homes accountable for abuse and neglect -- including falls.  They question a regulatory approach in which more than 1,000 Minnesota deaths were attributed to falls in nursing homes from 2002 through 2008, but the OHFC fully investigated only about 75 of those.

Federal officials audit the OHFC's process for evaluating reports of all types of incidents -- including falls -- and triaging them for possible investigation.  In the past two years, the OHFC has not met federal standards in how it selects cases to investigate.  Last year, federal auditors said that in a sample of complaints, OHFC triaged only 60 percent correctly.

In one of the sampled cases, the OHFC declined to do an on-site investigation into whether a nursing home was using mechanical lifts correctly and if the facility was following physician orders for medical checkups after injury. The auditors said the case should have been given the highest possible priority because other residents who were being moved with lifts were at risk.

But Minnesota's practice of not routinely issuing citations has a drawback, she acknowledged. To help consumers shop for nursing homes, the federal government developed a five-star quality rating that uses the number of citations issued against each home as part of the rating. That means that some substantiated cases of neglect are not reflected in the ratings for Minnesota homes.

In 2005, two nurses aides at Viewcrest Health Center were using a mechanical lift to move a resident from a wheelchair to bed. Without warning, the sling tore and the elderly woman fell to the floor.  The fall left her in great pain and her overall condition deteriorated. Six days later, she died. OHFC investigators discovered that Viewcrest was using a sling that had been patched to fix a broken strap, despite the manufacturer's recommendation to discard and not repair damaged slings. Despite the harm to the resident, the OHFC did not cite Viewcrest for violating government rules.

Viewcrest was found at fault in 2006, when the OHFC ruled that the nursing home didn't properly care for a resident, a known falls risk, who fell and broke her neck. The OHFC did issue citations in that case. Two years later, in 2008, the OHFC again cited Viewcrest because it didn't develop a care plan to help a resident who had fallen 11 times. But in the same year, the OHFC determined Viewcrest was at fault when a resident rolled off a bed and broke her leg while being cared for by a nurses aide. The state regulators said the facility did a poor job training the aide to care for the resident. No citations were issued. Then, in 2009, there was another fall-related incident at Viewcrest. The staff left a resident, who was at risk for falls, alone in his wheelchair and did not activate an alarm that would have sounded as he fell and cut his head. For a third time in four years, the OHFC declined to issue citations for mistakes the home made that resulted in falls.

Helen Fellerman, 93, had a rare disease that made her particularly prone to bleeding. She was also unsteady, forgetful and had a history of falls. So alarms were attached to her bed and wheelchair at Stillwater Good Samaritan Center so staff members would know when she was on the move. But when Fellerman tumbled from her wheelchair on the night of Aug. 31, 2005, the alarm did not go off, an OHFC report noted. She had been left alone for about 30 minutes. She died three days later. The fall had caused bleeding inside her skull, made worse by her medical condition.

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The State Journal-Register had an interesting article about how Illinois is challenging a decision by a Sangamon County Judge Zappa that puts a $10,000 limit on nursing home fines, but the ruling already has affected dozens of cases statewide.  Zappa issued his ruling in a case involving Peoria’s Rosewood Care Center, which had appealed a $25,000 fine stemming from the death of 95-year-old Katherine Martin in 2006.  Zappa found that the department violated state law and bypassed administrative rules when it began to impose fines of more than $10,000 several years ago. He barred the department from enforcing fines of more than $10,000 in past cases that remained pending and any future cases.

Public Health officials believe state law allowed them to boost fines to $50,000 whenever they determined that bad care directly caused a resident’s death. The department in 2006 also began issuing fines of at least $20,000 when residents sustained serious injuries connected with bad care.  High fines rightly punish and deter bad behavior, and promote better care.

Fines involving 40 Illinois nursing homes have been reduced, with the facilities agreeing to pay $10,000 or less, since the Feb. 13 decision.  I bet the facilities jumped at the chance to pay less than $10,000.   State officials are considering reducing individual fines that exceed $10,000 in more than 80 other cases going back to 2006.

The Department of Public Health hasn’t decided yet how to proceed in a pending case against Woodstock Residence, now known as Crossroads Care Center, in which the Woodstock nursing home was fined $300,000 — a record level — in May 2008. State regulators have investigated five suspicious deaths there, as well as a former employee who allegedly used drug cocktails on residents.

The article cited a few examples of cases in which fines against nursing homes have been reduced to $10,000 by the Illinois Department of Public Health because of Sangamon County Judge Leo Zappa’s order in February. These cases remain pending, and a final amount to be paid hasn’t been negotiated:

* Maryville Manor, Maryville: Original fine was $40,000, stemming from an Aug. 6, 2007, inspection that detailed a range of problems including multiple bedsores and pressure sores on residents, a lack of recreational activities and a situation in which a nurse’s aide resigned after injectable anti-anxiety medicine prescribed for a resident was found in the aide’s possession.

* Evergreen Nursing and Rehab Center, Effingham: Original fine was $25,000, stemming from a March 22, 2006, investigation into the June 22, 2005, death of an 84-year-old resident who suffocated after becoming caught in a bedrail that had a piece missing.

* Dearborn Court, Kankakee: Original fine was $30,000, stemming from a Sept. 4, 2007, investigation into the alleged physical assault of a 64-year-old female resident by two employees of the nursing home on Aug. 15, 2007. The employees allegedly hit the resident with plastic hangers, tied her up with a belt, punched her in the head and stomach and tried to choke her.

* Peachtree Estates, Jonesboro: Original fine was $20,000, stemming from a July 15, 2008, inspection that said the facility failed to obtain prompt medical attention for a 73-year-old female resident who fell and sustained a head injury June 19, 2008. About a month before that injury, the resident had fallen and broken her left arm; she also fell on June 20, 2008.

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We have uploaded a great Motion for Sanctions for deposition misconduct such as coaching witnesses and obstructive objections.  The motion was done by the well respected Minnesota nursing home lawyer Mark Kosieradzki.  Defense counsel in numerous cases interfere and obstruct the taking of depositions.  This is in violation of the Rules of civil Procedure and the oath of professionalism that lawyers must abide by in South Carolina.

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