Senate hearing examines 'devastating' nursing home abuse

Hearing comes just weeks after sexual assault case

By CNN'S DENISE POWELL CONTRIBUTED TO THIS REPORT.
John Moore/Getty Images

The phone rang shortly before Christmas in 2014.

When Maya Fischer answered, a nurse from the nursing home where her mother had been staying for more than a decade was on the other end of the line. In her Minnesota home, Fischer braced herself for difficult news.

"When you receive a phone call from the nursing home, your first thought is that ... my mother has passed," Fischer said.

The news was indeed troubling, but it was not what she expected.

"I was not at all prepared for the call that I received. ... The call that my mother had been a victim of a sexual assault in her nursing home," Fischer said. "For me and my family, it's been devastating."

Fischer testified in front of lawmakers in the nation's capital on Wednesday. The US Senate Committee on Finance held a hearing to discuss reports of abuse and neglect in some nursing homes nationwide and what can be done to protect those of all ages at risk of abuse.

"My final memories of my mother's life now include watching her bang uncontrollably on her private parts for days after the rape, with tears rolling down her eyes, apparently trying to tell me what had been done to her but unable to speak due to her disease," Fischer said in the hearing, referring to her mother's Alzheimer's disease.

Along with Fischer, Iowa resident Patricia Blank testified about how she is the daughter of a nursing home neglect victim, Virginia Olthoff. In a news release on Tuesday, Iowa Sen. Chuck Grassley's office noted how the nursing home where Blank's mother resided and died "received the highest possible ranking from the Centers for Medicare and Medicaid Services (CMS) for quality of resident care, though it had been fined for physical and verbal abuse a year before Olthoff's death."

"How a place with the highest possible rating could yield such a tragic incident is just outrageous," he said in the news release. "Things need to change, both for the standards at care facilities and for how CMS rates them. When American families consider where their loved ones can get the care they need, they should be able to rely on CMS information. That's clearly not the case right now."

After the hearing, Grassley said in a statement that Fischer's and Blank's stories were "troubling."

"Today I heard troubling accounts, which lead me to believe continued oversight is needed in this area. There are two government watchdog agencies currently working on reports for Congress. One is the Inspector General of Health and Human Services and the other is the Government Accountability Office. I plan to convene another hearing on this topic after these agencies release their reports. I also intend to submit follow-up questions to each of the witnesses as we work toward reforms," he said.

On Tuesday, CMS announced that updates will be made next month to the online tools for consumers to research nursing home quality: the Nursing Home Compare database, which allows users to compare nursing homes, and the Five-Star Quality Rating System, which rates nursing homes based on inspections, staffing and quality measures.

CMS also issued new guidance Tuesday that "clarifies what information is needed to identify immediate jeopardy cases across all healthcare provider types, which we believe will result in quickly identifying and ultimately preventing these situations," such as abuse or neglect cases.

"Every nursing home serving Medicare and Medicaid beneficiaries is required to keep its residents safe and provide high quality care. We have focused on strengthening requirements for nursing homes, working with states to enforce statutory and regulatory requirements, increasing transparency of nursing home performance, and promoting improved health outcomes for nursing home residents," Dr. Kate Goodrich, director of the Center for Clinical Standards and Quality at the Centers for Medicare & Medicaid Services, said in a statement Tuesday.

At Wednesday's hearing, lawmakers pressed Goodrich on what has been done and what more could be done to ensure quality at facilities.

There were several factors mentioned about why a nursing home might fall behind certain quality standards, including being unable to retain qualified staff and conduct comprehensive background checks on staff.

"We do have expectations for nursing facilities for having the appropriate staffing for their patient population, and we survey for that on a regular basis," Goodrich said in the hearing.

At the hearing, New Jersey Sen. Bob Menendez said in response, "I think there's a gulf between the expectations and the reality in several of these instances and we look forward to working with you to bridge the gulf."

'The most vulnerable people in our society'

Wednesday's hearing came just weeks after a sexual assault case at an Arizona health care facility involving a 29-year-old woman who has been in a vegetative state for years and gave birth in December. She has been a patient at the facility since 1992, according to court records. In January, a 36-year-old nurse was arrested on suspicion of impregnating the woman.

Among nursing homes, an exclusive CNN investigation in 2017 found that the federal government has cited more than 1,000 for mishandling or failing to prevent alleged cases of sex abuse, including rape and assault, at their facilities between 2013 and 2016 -- before revisions were made in November 2016 relating to how CMS surveys and inspects long-term care facilities. Fischer's mother's case was one of several in CNN's 2017 investigation. Her mother has since died.

"My goal by attending the hearing is simply to be my mom's voice and to put a face with her name. I don't want her to go down as being just another horrible statistic," Fischer said. "Stronger legislation needs to be enacted to protect the elderly. These are some of the most vulnerable people in our society, and I don't think that we're doing enough to ensure their safety."

Anyone -- a nurse, family member or resident -- can report nursing home abuse or neglect to CMS through state groups or a state's long-term care ombudsman program, whose information is provided on the Medicare website.

State health investigators examine all types of abuse reported at nursing homes and assisted living facilities. In the case of nursing homes, state officials typically conduct these investigations on behalf of the Centers for Medicare & Medicaid Services, which regulates the more than 15,000 facilities that receive government reimbursements that pay for many residents' care.

Additionally, states conduct standard survey inspections of nursing homes that are unannounced and can come at any time. Both state health agencies and the federal government use the information from routine surveys to rate facilities.

If abuse or neglect is found in a nursing home, penalties are enforced, ranging from monetary penalties to termination from the Medicare and Medicaid program.

A database of nursing home penalties in the United States can be found on the Medicare website, and there is a national registry of Medicare-funded nursing homes where you can find out how the facility ranks and whether it has any recent citations.

The American Health Care Association represents nursing centers, assisted living communities and centers and homes for individuals with disabilities.

Dr. David Gifford, senior vice president of quality and regulatory affairs at the association, who testified at the hearing, said in a statement after the hearing that the group "remains committed to reducing any future cases of abuse and neglect."

"AHCA stands ready to work with Congress, members of the Senate Finance Committee, CMS, and other providers to keep residents safe and continue improving the quality of care provided. There are robust regulatory requirements and penalties already in place to ensure patients are protected and corrective measures are implemented after a case of abuse or neglect occurs. But we can -- and must -- do more," Gifford said in the statement.

"We should expand federal programs that attract health care workers to the nursing home profession. We should strengthen federal regulations around reporting and sharing of information about employees who have engaged in abuse through the creation of a national background check registry. And we should make resident and family satisfaction ratings of nursing homes publicly available."

This isn't the first time lawmakers looked into nursing home safety. In September, the House Committee on Energy and Commerce held a subcommittee hearing on "examining federal efforts to ensure quality of care and resident safety in nursing homes."

In a response at that time, Mark Parkinson, president and CEO of the American Health Care Association, said in a statement that long-term care providers have made improvements in quality of care, such as by reducing rehospitalization rates and increasing staffing.

"Instead of praise for this progress, we have been subjected to additional scrutiny and criticism," Parkinson said.

"The reality is that nursing homes are a convenient political punching bag. Over the years, Congress has turned to us to pay for everything from student loan debt relief to Medicare physician payments," he said. "At a time when Congress faces public criticism for its failure to work together and accomplish shared goals, this hearing seems like a misguided effort to find more ways to regulate an already overburdened sector. Long term care is one of the most regulated industries in the country, yet we've shown some of the most dramatic improvement on both self-reported and government quality measures."

'I find it hard to believe that the time he was caught was the first time'

George Kpingbah, the 76-year-old nursing assistant accused of assaulting Fischer's mother, Sonja Fischer, had a history of sexual assault allegations.

Personnel records obtained by prosecutors during the investigation into Sonja Fischer's case and reviewed by CNN showed that Kpingbah was suspended three times as officials at Walker Methodist Health Center in Minneapolis investigated accusations of sexual abuse at the facility, including at least two in which he was the main suspect.

The earliest complaint was in 2008, when police investigated allegations that he had engaged in sexual intercourse with a 65-year-old with multiple sclerosis. In another case, an 83-year-old blind and deaf woman who lived on the same wing as Maya Fischer's mother said she was raped multiple times -- always at midnight.

Police investigated her report just seven months before Fischer's mother was assaulted. Though the woman could not identify her assailant, Kpingbah was suspended, along with several other male staffers who were on duty during the nights of the alleged assaults.

None of these allegations was found to be substantiated by the facility or the state. For years, Walker Methodist kept Kpingbah on the overnight shift -- until one early morning in December 2014, when someone caught him in the act.

It was 4:30 a.m. December 18, 2014, when a fellow caregiver saw Kpingbah in 83-year-old Sonja Fischer's room at Walker Methodist. The witness noticed the aide thrusting back and forth, which is when she said she knew that a sexual assault was occurring.

Kpingbah ultimately pleaded guilty to third-degree criminal sexual conduct with a mentally impaired or helpless victim and was sentenced to eight years in prison.

In a court statement in 2015, Maya Fischer said that her mother, who had Alzheimer's disease, was "unable to speak" and "unable to fight back" against her assailant.

Fischer detailed her mother's story, recounting how she had fled Indonesia with her family to escape the rape and killing of young girls by Japanese soldiers, only to fall victim decades later to a man whose job was to care for her.

"I find it hard to believe that the time he was caught was the first time he assaulted her, and that will always haunt me," Fischer said Monday.

Abuse cases typically get reported to state departments of health, and Fischer hopes nursing homes and state agencies will be more transparent when there are future cases of abuse.

"The Department of Health needs to take these accusations and investigations more seriously," she said. "It's my understanding that Mr. Kpingbah was a suspect in prior investigations before he was caught raping my mother, and my mother lived there for 12 years."

Regarding Sonja Fischer's case, the Minnesota Department of Health found that the facility acted immediately to ensure the resident's safety and promptly removed Kpingbah. The state also noted that the facility had provided Kpingbah with required abuse training. As a result, the facility was not cited for any wrongdoing; only Kpingbah was held accountable for the assault.

Maya Fischer had no way of knowing about the previous allegations against Kpingbah uncovered by CNN. But she sued Kpingbah, who agreed to an unusual arrangement in which, as of 2017, he is on the hook for a $15 million judgment only if he abuses again.

Walker Methodist refused to comment on the previous allegations against Kpingbah, who worked at the facility for nearly eight years, but said in a statement that it fully cooperated with authorities and that "the care and well-being of all of our residents and patients is our primary focus."

Mark Kosieradzki, a Minnesota attorney who has represented a number of victims and their families, including the Fischer family, said he has seen the number of nursing home abuse cases rise within his own practice.

"The number of calls we get are increasing. The severity of some of the problems we're seeing is increasing. Whether more people are calling because there's a greater awareness in the community or whether there's more problems, I guess it would be nice if we had information from [the Centers for Medicare and Medicaid Services] about that, but the fact of the matter is, we'll get six to eight calls a day in our law firm," Kosieradzki said.

"Certainly, there's good nursing homes out there, but there's also nursing homes that are focused on their profits as opposed to the care they're giving, and that's what we try to focus on to change," he said.

Although laws require abuses to be reported and investigated, these laws may not always be followed by some nursing homes. Then there are concerns that if an incident gets reported, some experts say, investigations should be conducted more aggressively.

Many nursing home employees promptly report abusers to authorities, as required by federal law, and assist in the investigations, but in numerous examples of abuse uncovered by CNN in 2017, some facilities made it possible for violent rapes and sexual assaults to go unchecked.

In those facilities, allegations were routinely questioned or dismissed because victims had cognitive conditions such as Alzheimer's. Workers often lacked the specific training needed to spot sexual abuse, keeping reports of abuse from ever reaching authorities, and the reputation and safety of the facility may have taken priority if there was fear that bringing investigators into a cash-strapped facility could expose other issues or threaten a nursing home with closure or costly lawsuits.

As for Wednesday's hearing, Kosieradzki said he hopes for more awareness about various types of abuse: sexual abuse, overmedicating with opioids and neglect.

"I'm looking for the CMS and the [state] Department of Health to start looking at these consumers and these patients to help them."

Despite the litany of abuses detailed in government reports, there is no comprehensive national data on how many cases of sexual abuse have been reported in facilities housing the elderly.

In CNN's 2017 analysis, the health departments and other agencies that oversee long-term care facilities in all 50 states were surveyed. Of the states that could provide at least some data, the responses varied widely.

Some improvements in care

There can be difficulty in identifying abuse and neglect in nursing homes, and so gathering that data has been a challenge, said David Stevenson, assistant professor of health policy at the Vanderbilt University School of Medicine in Nashville, who has conducted research on negligence claims against nursing homes.

"We try to identify broader trends about quality of care, but specifically identifying abuse and neglect can be challenging," Stevenson said, adding that progress has been made recently.

"Broadly speaking, I think there have been a lot of quality improvements in nursing home care over the last few decades," he said. "But I also think that data have shown that also poor-quality care has been kind of frustratingly persistent and has been around for a long time."

Stevenson added that he hopes Wednesday's hearing called attention to the issue.

"Hearing from the relatives of people who have suffered abuse and neglect in nursing homes will be incredibly important and powerful, and also hearing from industry leaders and researchers and those who are engaged in nursing home oversight and accountability I think will be really important," said Stevenson, who was not involved in the hearing.

"The big challenge of abuse and neglect in nursing homes is, I think, it has been persistent over a number of years," he said. "I don't think it's incredibly prevalent, but really having any abuse and neglect in nursing homes is not acceptable."

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