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testimony on elderly abuse in nursing homes  by william f. benson

 William F. Benson
Acting Principal Deputy Assistant Secretary for Aging
U.S. Department of Health and Human Services

Before the House Older Americans Caucus
November 5, 1996

Co-Chairs and Members of the Older Americans Caucus: On behalf of the Administration on Aging (AoA), I appreciate the opportunity to testify about a topic of great concern to older Americans - elder abuse in nursing homes and other long-term care settings. Your interest and leadership in this area is important to this Administration and to the national aging network, and I Recommend you for calling this hearing today.

I have been asked to address the role of long-term care ombudsmen from the perspective of the Administration on Aging. We at AoA are proud of the activities of the long-term care ombudsman program staff and volunteers across our nation. For more than two decades, they have worked on the front lines on a daily basis protecting the rights of and advocating for the approximately 2.5 million vulnerable older Americans living in nursing homes, board and care facilities, and other long-term care facilities. ombudsmen are usually the first and sometimes the only people from outside the facility to see cases related to abuse and are more likely to intercede immediately to prevent, correct or report these cases than any other single source.

The Long-Term Care Ombudsman Program under the older Americans Act was initiated in 1972 by the Nixon Administration in response to the continuous reports of shocking conditions in America's nursing homes. The late Dr. Arthur S. Flemming launched the program in response to numerous recommendations from states and national associations representing older persons, and since that time states have worked to develop statewide ombudsman programs to provide a community presence in long-term care facilities. Today, a total of 565 ombudsman programs, 913 paid ombudsmen and 11,580 volunteers (6,421 of whom were trained and certified to investigate complaints) serve residents of nursing homes and a growing number of similar adult care facilities.

Ombudsmen are able to monitor both private and publicly subsidized care as concerned citizens and officials, rather than as government regulators. By statute, they are required to identify problems that impact residents and make recommendations for ways to address those problems. In Fiscal Year 1995, ombudsmen investigated over 218,000 complaints made by over 162,000 individuals. Over 70% of these complaints were resolved or partially resolved to the residents' or complainants' satisfaction. While these complaints covered a wide range of concerns, clearly we know that abuse does occur in long-term care settings. What we do not know is the full scope of this abuse. In a soon-to-be published article, Dr. Rosalie Wolf of the Institute on Aging at the Medical Center of Central Massachusetts states:

"In spite of all the anecdotal information, media exposes, ethnographic studies, and licensure and certification reports on nursing homes, little is known about the incidence of abuse in institutional settings although all agree that it does exist."

We have all heard horrendous stories of the heinous abuse and gross neglect of nursing home residents, and as Dr. Wolf's statement implies, the media has helped to spread the word. one example is of a case related in our annual report that occurred in California. An anonymous caller to the ombudsman program alleged that a frail elderly female resident of a board and care home was being ove r medicated with an unprescribed psychotropic drug with intent to cause her death. The ombudsman went to the facility and found the resident in a catatonic state. The ombudsman then contacted the local law enforcement agency, Adult Protective Services, and an ambulance service which transferred the resident to an acute emergency center for respiratory failure. Further investigation revealed an intricate conspiracy between the owner of the facility, an ex-son-in-law, and a treating physician. The ombudsman played a significant role in pulling all of the investigatory forces together and collecting information that ultimately led to a criminal conviction of the guilty parties.

The Senate Special Committee on Aging hearing on October 22, 1997, and the recent Time magazine article on malnourishment in nursing homes highlighted one particularly shocking type of abuse'. Other forms of abuse may be slightly more subtle, but nevertheless, ultimately rob individuals of their dignity and freedom. I was recently told about a New York State case of an older gentleman who was admitted to a nursing home after a hospital discharge. It was questionable whether or not he would recuperate sufficiently from a stroke to return to his home for which he had "life use". A heavy amount of therapy was immediately started and he spoke every day about returning home.

A nursing home ombudsman reassured the man that she would go to his home and check to see that everything was in order. When she got there, she found that the home was empty and undergoing renovations. A neighbor, who possessed the nursing home resident's power of attorney, told the ombudsman he was renovating the home to prepare it for rental, and that, in fact, it was to be rented the next month. The ombudsman asked about the "life use" of the property and the neighbor simply stated he did not anticipate the elderly man ever coming home again, and reported that the nursing home resident's personal belongings had been burned and his hunting dog given away. The ombudsman salvaged half of a grocery bag of old photographs for the nursing home resident and assisted in commencing legal action on his behalf. Although valiant efforts were made by the ombudsman in this situation, the man's health continued to fail so-that he was no longer able to return home. He eventually gave up pursuing legal action.

This case is a very sad situation, but indicates the depths that abuse can reach, whether it be physical, mental or emotional, and the compassionate efforts made by ombudsmen across the country in similar situations.

These are only two of the many examples where ombudsmen step in to represent the interests of vulnerable older persons. As ..others here today will relate in their statements, it is clear that unspeakable tragedies would occur every day across our country were it not for the vigilance and devotion of ombudsmen to their duty. That is why this Administration has continued to advocate for preserving the ombudsman program through the Older Americans Act, both in the pending reauthorization as well as through the appropriations process.

In 1992, Congress created the vulnerable elder rights protection programs in title VII of the Older Americans Act, which brought together all parts of the Act dedicated to the protection of the rights of vulnerable, at-risk seniors. This title includes the long-term care ombudsman program, elder abuse prevention program, legal assistance, and pension and benefits counseling. In recent years, funding has only been provided for the ombudsman and elder abuse programs. I think it is important to note that-the elder abuse provisions of title VII also have a direct relationship with the work of ombudsmen, particularly as it relates to coordination of services and training. We remain concerned about efforts to eliminate this title because we believe that doing so will eliminate critical consumer protection services for especially vulnerable elders. This year, as part of our reauthorization proposal, we have recommended a consolidation within title VII, combining the four separate authorizations into one. This proposal would provide the states with greater flexibility to address their elder protection activities consistent with their needs, while maintaining a base funding level for the long-term care ombudsman program. In other words, in addition to the ombudsman program, states would have the complete flexibility in choosing the level of support for consumer protection services, which could include elder abuse prevention programs and activities.

The ombudsman program also makes significant contributions toward combatting fraud and abuse in Medicare and Medicaid. At the 1995 White House Conference on Aging, President Clinton announced "Operation Restore Trust" (ORT), a major initiative to fight Medicare and Medicaid fraud. The state ombudsmen in California, New York, Illinois, Florida and Texas were designated as part of a core team for ORT, a two-year demonstration project of the U.S. Department of Health and Human Services involving the coordinated efforts of the Health Care Financing Administration, the office of the Inspector General and the Administration on Aging. Under ORT, ombudsmen in the five states launched ambitious statewide training programs to educate ombudsmen and other professionals about fraud, waste and abuse, and strategies for handling it. These activities have been very successful in returning funds to the Medicare Trust Funds. For example, in Florida, a relative questioned charges to Medicare of over $1,000 for an "anticontracture" device for his family member who lived in a nursing home. The ombudsman went to the facility and found that an individual had visited the facility and ordered the brace devices for almost all of the 90 patients. The contraptions were stored in the residents' closets; they were not used to help any of the frail, sick people to whom they were given; and in many cases, they caused pain and skin abrasions. The ombudsman reported her suspicion of Medicare fraud to the appropriate authorities, providing documentation for what she had observed at the facility. The individual was ultimately convicted of organized fraud in several facilities, sentenced to jail, and ordered to pay restitution and fines.

One topic of today's hearing, which focuses on background checks of those who work in long-term care facilities and settings, is an important one. According to the Administration on Aging's Long-Term Care Ombudsman Annual Report for FY 1995, the two most frequent nursing home complaints involved accidents and improper handling, and issues related to dignity and respect. -The FY 1995 report analyzed data from 29 states. The FY 1996 data, which is currently being compiled and analyzed, will be from all 50 states, Washington, DC and Puerto Rico. This data was collected under the newly implemented National Ombudsman Reporting System (NORS).

In FY 1995, the 29 states reported over 80,000 complaints. Around 5 percent of these complaints (4,500) were reported for complaint categories which are specifically defined as abuse. For example, physical abuse complaints number about 1,800. other complaint categories such as "dignity, respect, staffattitudes" or "personal funds mismanaged" include complaints which often involve abuse, neglect and exploitation. If these cases are added to the specific abuse complaints, there are over 17,000 complaints, more than 20% of the total which are received. The line between neglect and abuse is very hard to draw. The complaints reported under many categories such as "personal hygiene" and "accidents, improper handling" can also involve abuse issues. Adding these categories will result in 30,000 complaints or more than 1/3 of the total for nursing facilities. The 29 states were responsible for less than half of the complaints reported. The data received from the ombudsmen is not specifically aimed at measuring abuse but does give an indication of a significant incidence of abuse in nursing facilities.

Why does such abuse occur so frequently? We knowthat some of these acts are carried out by individuals who should not be working in caregiving environments. They have histories of inappropriate behavior and, unfortunately, some of these types of individuals find jobs in some long-term care facilities. We also know that many caring and committed individuals work in nursing homes and other long-term care settings around the country as well. But for those who commit crimes, who abuse or neglect, clearly, solutions must be found to prevent this type of problem from continuing, and ombudsmen play key roles in identifying the problem in many areas. Many ombudsmen across the country have indicated a need for a nationwide system of background checks on applicants. Unquestionably, some form of advance screening is necessary for those individuals who work on a daily and hourly basis with our loved ones. Also of equal importance is training, particularly for those in the criminal justice system who work with frail and often uncommunicative victims and witnesses of criminal abuse, as well as training staff in residents, needs and rights and how to work with residents under trying conditions. ombudsmen and others in the aging network throughout the nation carry out such staff training programs on a regular basis. In addition, I cannot say enough about how important it is to fully implement the training and certification requirements of the historic Nursing Home Reform law. Finally, and equally important, is the expansion of a community presence in facilities through the Older Americans Act ombudsman program to provide additional eyes and ears in long-term care facilities..

In conclusion, the Administration on Aging is proud of the many contributions which the Long-Term Care Ombudsman Program has played in helping to empower residents and potential residents of nursing homes and long-term care facilities to resolve problems and receive quality care as well as providing timely and accurate consumer information. This is a program that has a proven track record. We also believe that this successful program, in conjunction with legal assistance personnel, benefits counselors, information and referral representatives, and other state and area agency staff, provide a valuable model for expanding the ombudsman concept into other arenas, in particular when older persons face a bewildering array of decisions regarding their health care. The Administration on Aging has proposed this type of program as part of our reauthorization efforts for the 105th Congress, and it has been met with interest and enthusiasm.

I appreciate the opportunity to testify before you today, and look forward to any questions that you might have.