Tagged Patient Safety

Assisted Living’s Breakneck Growth Leaves Patient Safety Behind

They found Bonnie Walker’s body floating in a pond behind her assisted living facility in South Carolina. There were puncture wounds on her ear, her temple, her jaw and her cheeks.

Her right forearm and her pacemaker were inside one of the alligators that lived in the pond.

Like 4 in 10 residents in assisted living facilities, Walker, 90, had dementia. Shortly after midnight one day in July 2016, she slipped out of her facility, Brookdale Charleston, as she had done a few days before. This time, no one noticed her missing for seven hours.

“No one should have to pass away that way,” her granddaughter Stephanie Weaver said.

Stephanie Weaver holds a photo of her grandmother, Bonnie Walker. Weaver is suing Brookdale Charleston for emotional distress following Walker’s death in a pond behind the assisted living facility in 2016.(Leigh Webber for KHN)

Assisted living facilities were originally designed for people who were largely independent but required help bathing, eating or with other daily tasks. Unlike nursing homes, the facilities generally do not provide skilled medical care or therapy, and stays are not paid for by Medicare or Medicaid.

Dementia care is the fastest-growing segment of assisted living. As these residences market themselves to people with Alzheimer’s and other types of dementia, facilities across the country are straining to deliver on their promises of security and attentive care, according to a Kaiser Health News analysis of inspection records in the three most populous states.

In California, 45 percent of assisted living facilities have violated one or more state dementia regulations during the past five years. Three of the 12 most common California citations in 2017 were related to dementia care.

In Florida, 1 in 11 assisted living facilities have been cited since 2013 for not meeting state rules designedto prevent residents from wandering away.

And in Texas, nearly a quarter of the facilities that accept residents with Alzheimer’s have violated one or more state rules related to dementia care, such as tailoring a plan for each resident upon admission or ensuring that staff members have completed special training, according to nearly six years of records.

“There is a belief in our office that many facilities do not staff to the level” necessary to meet the unanticipated “needs of residents, especially medical needs,” said Fred Steele, Oregon’s long-term care ombudsman. “Many of these are for-profit entities. They are setting staffing ratios that maybe aren’t being set because of the care needs of the residents but are more about the bottom line of their profits.”

Uneven Regulation

These concerns, though particularly acute for people with dementia, apply to all assisted living residents. They are older and frailer than assisted living residents were a generation ago. Within a year, 1 in 5 experience a fall, 1 in 8 visit an emergency room and 1 in 12 have an overnight hospital stay, according to the Centers for Disease Control and Prevention. Half are 85 or older.

“Assisted living was created to be an alternative to nursing homes, but if you walk into some of the big assisted living facilities, they sure feel like a nursing home,” said Doug Pace, director for mission partnerships with the Alzheimer’s Association.

Yet the rules for assisted living remain looser than for nursing homes. The federal government does not license or oversee assisted living facilities, and some states set tougher rules than others.

The government does not publish quality measures as it does for nursing homes. Inspections usually are less frequent, and fines are generally far lower than what a nursing home might incur for a similar mistake.

Lindsay Schwartz, an associate vice president at the National Center for Assisted Living, an industry group, said facilities must balance safety with allowing people with dementia to move about as freely as possible and to socialize.

“Dementia is a difficult disease,” she said. “Freedom of movement is incredibly important for overall health, mind, body and spirit. You can’t keep people in isolation.”

The industry says rigid government regulations don’t mesh with the individual approaches that assisted living facilities aspire to create for residents.

But residents’ families, their lawyers and advocates say the violent behavior of agitated residents and escapes could be avoided with better training and more staff. Eliza Cantwell, a Charleston, S.C., plaintiffs’ lawyer, said too many facilities were accepting residents they weren’t prepared to adequately care for because they wanted to maximize their income.

“They don’t have the qualified personnel to take care of these people, and they’re taking care of them anyway,” she said.

Cantwell is representing Weaver in a suit against Brookdale for emotional distress, which Weaver says came from being among the first people to discover her grandmother’s body. Brookdale has already settled a wrongful-death claim from Bonnie Walker’s estate.

The company declined to discuss Weaver’s lawsuit and said in a statement that “our everyday focus and priority is to keep residents safe.” Brookdale called Walker’s death “an unfortunate accident” and said it has retrained its staff.

A year after Walker’s death, after four inspections, the South Carolina Department of Health and Environmental Control fined Brookdale for 11 violations, including not properly performing night checks and letting staffing drop below required levels. The penalty: $6,400.

“I worked as a law enforcement agent for the Department of Natural Resources, and I’ve written wildlife tickets larger than what DHEC did,” Weaver said. “This was nothing.”

Stephanie Weaver holds a photo of her grandmother, Bonnie Walker. Weaver is suing Brookdale Charleston for emotional distress following Walker’s death in a pond behind the assisted living facility in 2016.(Leigh Webber for KHN)

Bonnie Walker, a resident of Brookdale Charleston with dementia, was found floating in a pond behind the assisted living facility in July 2016, after an apparent alligator attack. Brookdale Charleston called her death “an unfortunate accident.”(Leigh Webber for KHN)

In July 2016, Brookdale Charleston resident Bonnie Walker walked near the pond shortly after midnight. She was found dead after an apparent alligator attack.(Leigh Webber for KHN)

‘Get Him Away From Me’

Nearly a quarter of the nation’s 30,000 assisted living facilities either house only people with dementia or have special areas known as memory care units. These wings have locked doors and other safeguards to prevent residents from leaving. The facilities often train staff members in techniques to manage behavior related to these diseases and provide activities to keep the residents engaged and stimulated.

These units usually are more expensive, with monthly costs averaging $6,472, compared with $4,835 for regular assisted living, according to a survey by the National Investment Center for Seniors Housing & Care, a group that analyzes elder care market trends. Senior housing investors earned nearly 15 percent in annual returns over the past five years, higher than for apartment, hotel, office and retail properties, according to the center. Beth Burnham Mace, chief economist at the center, said memory care unit construction was outpacing all other types of senior housing.

Aggressive behavior, a hallmark of dementia, is a major problem in assisted living facilities. One national study, published in 2016, found that 8 percent of assisted living residents were physically aggressive or abusive toward residents or staff.

In the dementia unit of The Point at Rockridge, an assisted living facility in Oakland, Calif., a resident identified in court papers as Ian began to follow another resident, Olivia Deloney, an 88-year-old with dementia. Before retiring, she had been dean of students at a school for the blind.

“That man is crazy,” one employee recalled Deloney saying, according to the employee’s sworn statement. “Get him away from me.”

In September 2015, Ian grabbed Deloney and threw her to the ground, breaking her right hip, a video shows. When paramedics were putting her into a stretcher, Ian tried to kick her, and the emergency workers had to keep him away, the police report said.

Afterward, the administrators told Deloney’s daughter, Simone Stevens, that they had not known that Ian, a retired university facilities engineer, was dangerous, her lawsuit said.

“They just made it sound like it was like a freak accident: ‘He’s really just a calm and likable resident,’” Stevens said in an interview.

A state investigation report said The Point had been trying to address his behavioral problems before the attack. State regulators declined to punish The Point, saying in their report that there was “insufficient” evidence that the facility had “clear knowledge” Ian would be a danger to other residents.

But when Stevens sued The Point, her lawyer, Felicia Curran, discovered that Ian’s agitated behavior, including pushing and shoving, had been the reason his wife initially placed him there. At The Point, he had punched one aide in the shoulders, grabbed another by the neck and jumped on a third and beaten her, employees said in statements taken by Curran.

“It was an everyday thing for him to chase staff and be physically aggressive,” one declared. Aides posted a photo of him in their kitchen, warning colleagues to watch out for his violent outbursts, and employees once locked themselves in bathrooms for protection, according to records in the case.

“They should have never had him there in the first place,” Stevens said.

Tracee DeGrande, the president of Integral Senior Living, which owns The Point, wrote in a statement that the episode was not typical. “Our staff associates work hard to care for residents, many of whom would have nowhere to go if we didn’t provide a place for those living with dementia and Alzheimer’s disease,” she wrote.

After the attack, The Point evicted Ian. Deloney returned to the facility, but, less stable after surgery, she fell and broke her hip again. She stopped eating and died that December, according to her family’s lawsuit, which blamed The Point for not increasing supervision in light of Deloney’s weakened state.

The Point paid $1.9 million to settle the case. DeGrande wrote that the “settlement was in no way an admission of responsibility for what ended up as a difficult and sad situation.”

To calm agitated residents, some facilities are too reliant on psychotropic drugs, which carry increased risk of strokes, falls and confusion. An in-progress study funded by the National Institutes of Health has discovered that 27 percent of residents with dementia take an antipsychotic medication, and most lack documentation assuring the drugs are justified, said the lead investigator, Sheryl Zimmerman, a health researcher at the University of North Carolina at Chapel Hill.

Zimmerman said such drugs are often not necessary if residents are cared for by experienced aides who can de-escalate troubling behaviors and know techniques that engage and soothe those with dementia. But she said low pay and frequent turnover make that difficult. “The workforce could be better trained than they are,” Zimmerman said.

Requirements Vary By State

Staffing and training requirements vary greatly from state to state. A study published in 2016 and led by Paula Carder, a professor at Portland State University, found that only seven states required facilities to have a registered nurse. States required anywhere from two to 30 hours of training for dementia unit workers. A handful of states required no specialized training, according to the study. Carder found that 19 states set minimum staff-to-resident ratios for dementia units, while the others left it to the facilities.

North Carolina requires one of the tightest staffing ratios in the nation for dementia units: one worker for every eight residents during the day and evening.

Many of these are for-profit entities. They are setting staffing ratios that maybe aren’t being set because of the care needs of the residents but are more about the bottom line of their profits.

Fred Steele, Oregon’s long-term care ombudsman

In a lawsuit, Michele Mullen asserted that Franklin Manor Assisted Living in Youngsville, N.C., did not meet North Carolina’s staffing minimums on a third of the days her mother, Claire Murphy, lived there in 2015 and 2016.

She said she would find her mother with her pants wet with urine all the way down to her knees, according to a deposition she gave in the lawsuit. Mullen said aides had repeatedly misplaced her mother’s walker. She would see her mother holding onto the hallway railing as she tried to get to her room. On New Year’s Day in 2016, her mother fell and was hospitalized for a fractured arm.

Gregory Nicoluzakis, the general counsel for Saber Healthcare Group, which owns Franklin Manor, said in an email that Mullen’s allegations were inaccurate. “We believe it is telling that Ms. Mullen admitted her mother to our facilities on three separate occasions despite having the choice of other providers,” he wrote.

Drew Hathaway, an attorney for Mullen, said there were no better alternatives nearby that had memory care units. “There are not that many facilities in these rural areas,” Hathaway said. “That’s the sad reality.”

Franklin Manor was fined in 2016 for not following doctors’ orders that two residents needed to use walkers. In February, the state cited it for not supervising five residents, all with histories of falling, who had fallen and injured themselves. Nicoluzakis said Franklin Manor was in compliance with state regulations.

Mullen ultimately removed her mother from Franklin Manor; Murphy died last December.

“I would say, ‘Mom needs to go to the bathroom.’ ‘Mom needs help with this,’” Mullen recalled in her deposition. “And they would look at me and actually say, ‘Why don’t you do it?’”


KHN’s coverage of these topics is supported by
The SCAN Foundation
and
Gordon and Betty Moore Foundation

Assisted Living’s Breakneck Growth Leaves Patient Safety Behind

They found Bonnie Walker’s body floating in a pond behind her assisted living facility in South Carolina. There were puncture wounds on her ear, her temple, her jaw and her cheeks.

Her right forearm and her pacemaker were inside one of the alligators that lived in the pond.

Like 4 in 10 residents in assisted living facilities, Walker, 90, had dementia. Shortly after midnight one day in July 2016, she slipped out of her facility, Brookdale Charleston, as she had done a few days before. This time, no one noticed her missing for seven hours.

“No one should have to pass away that way,” her granddaughter Stephanie Weaver said.

Stephanie Weaver holds a photo of her grandmother, Bonnie Walker. Weaver is suing Brookdale Charleston for emotional distress following Walker’s death in a pond behind the assisted living facility in 2016.(Leigh Webber for KHN)

Assisted living facilities were originally designed for people who were largely independent but required help bathing, eating or with other daily tasks. Unlike nursing homes, the facilities generally do not provide skilled medical care or therapy, and stays are not paid for by Medicare or Medicaid.

Dementia care is the fastest-growing segment of assisted living. As these residences market themselves to people with Alzheimer’s and other types of dementia, facilities across the country are straining to deliver on their promises of security and attentive care, according to a Kaiser Health News analysis of inspection records in the three most populous states.

In California, 45 percent of assisted living facilities have violated one or more state dementia regulations during the past five years. Three of the 12 most common California citations in 2017 were related to dementia care.

In Florida, 1 in 11 assisted living facilities have been cited since 2013 for not meeting state rules designedto prevent residents from wandering away.

And in Texas, nearly a quarter of the facilities that accept residents with Alzheimer’s have violated one or more state rules related to dementia care, such as tailoring a plan for each resident upon admission or ensuring that staff members have completed special training, according to nearly six years of records.

“There is a belief in our office that many facilities do not staff to the level” necessary to meet the unanticipated “needs of residents, especially medical needs,” said Fred Steele, Oregon’s long-term care ombudsman. “Many of these are for-profit entities. They are setting staffing ratios that maybe aren’t being set because of the care needs of the residents but are more about the bottom line of their profits.”

Uneven Regulation

These concerns, though particularly acute for people with dementia, apply to all assisted living residents. They are older and frailer than assisted living residents were a generation ago. Within a year, 1 in 5 experience a fall, 1 in 8 visit an emergency room and 1 in 12 have an overnight hospital stay, according to the Centers for Disease Control and Prevention. Half are 85 or older.

“Assisted living was created to be an alternative to nursing homes, but if you walk into some of the big assisted living facilities, they sure feel like a nursing home,” said Doug Pace, director for mission partnerships with the Alzheimer’s Association.

Yet the rules for assisted living remain looser than for nursing homes. The federal government does not license or oversee assisted living facilities, and some states set tougher rules than others.

The government does not publish quality measures as it does for nursing homes. Inspections usually are less frequent, and fines are generally far lower than what a nursing home might incur for a similar mistake.

Lindsay Schwartz, an associate vice president at the National Center for Assisted Living, an industry group, said facilities must balance safety with allowing people with dementia to move about as freely as possible and to socialize.

“Dementia is a difficult disease,” she said. “Freedom of movement is incredibly important for overall health, mind, body and spirit. You can’t keep people in isolation.”

The industry says rigid government regulations don’t mesh with the individual approaches that assisted living facilities aspire to create for residents.

But residents’ families, their lawyers and advocates say the violent behavior of agitated residents and escapes could be avoided with better training and more staff. Eliza Cantwell, a Charleston, S.C., plaintiffs’ lawyer, said too many facilities were accepting residents they weren’t prepared to adequately care for because they wanted to maximize their income.

“They don’t have the qualified personnel to take care of these people, and they’re taking care of them anyway,” she said.

Cantwell is representing Weaver in a suit against Brookdale for emotional distress, which Weaver says came from being among the first people to discover her grandmother’s body. Brookdale has already settled a wrongful-death claim from Bonnie Walker’s estate.

The company declined to discuss Weaver’s lawsuit and said in a statement that “our everyday focus and priority is to keep residents safe.” Brookdale called Walker’s death “an unfortunate accident” and said it has retrained its staff.

A year after Walker’s death, after four inspections, the South Carolina Department of Health and Environmental Control fined Brookdale for 11 violations, including not properly performing night checks and letting staffing drop below required levels. The penalty: $6,400.

“I worked as a law enforcement agent for the Department of Natural Resources, and I’ve written wildlife tickets larger than what DHEC did,” Weaver said. “This was nothing.”

Stephanie Weaver holds a photo of her grandmother, Bonnie Walker. Weaver is suing Brookdale Charleston for emotional distress following Walker’s death in a pond behind the assisted living facility in 2016.(Leigh Webber for KHN)

Bonnie Walker, a resident of Brookdale Charleston with dementia, was found floating in a pond behind the assisted living facility in July 2016, after an apparent alligator attack. Brookdale Charleston called her death “an unfortunate accident.”(Leigh Webber for KHN)

In July 2016, Brookdale Charleston resident Bonnie Walker walked near the pond shortly after midnight. She was found dead after an apparent alligator attack.(Leigh Webber for KHN)

‘Get Him Away From Me’

Nearly a quarter of the nation’s 30,000 assisted living facilities either house only people with dementia or have special areas known as memory care units. These wings have locked doors and other safeguards to prevent residents from leaving. The facilities often train staff members in techniques to manage behavior related to these diseases and provide activities to keep the residents engaged and stimulated.

These units usually are more expensive, with monthly costs averaging $6,472, compared with $4,835 for regular assisted living, according to a survey by the National Investment Center for Seniors Housing & Care, a group that analyzes elder care market trends. Senior housing investors earned nearly 15 percent in annual returns over the past five years, higher than for apartment, hotel, office and retail properties, according to the center. Beth Burnham Mace, chief economist at the center, said memory care unit construction was outpacing all other types of senior housing.

Aggressive behavior, a hallmark of dementia, is a major problem in assisted living facilities. One national study, published in 2016, found that 8 percent of assisted living residents were physically aggressive or abusive toward residents or staff.

In the dementia unit of The Point at Rockridge, an assisted living facility in Oakland, Calif., a resident identified in court papers as Ian began to follow another resident, Olivia Deloney, an 88-year-old with dementia. Before retiring, she had been dean of students at a school for the blind.

“That man is crazy,” one employee recalled Deloney saying, according to the employee’s sworn statement. “Get him away from me.”

In September 2015, Ian grabbed Deloney and threw her to the ground, breaking her right hip, a video shows. When paramedics were putting her into a stretcher, Ian tried to kick her, and the emergency workers had to keep him away, the police report said.

Afterward, the administrators told Deloney’s daughter, Simone Stevens, that they had not known that Ian, a retired university facilities engineer, was dangerous, her lawsuit said.

“They just made it sound like it was like a freak accident: ‘He’s really just a calm and likable resident,’” Stevens said in an interview.

A state investigation report said The Point had been trying to address his behavioral problems before the attack. State regulators declined to punish The Point, saying in their report that there was “insufficient” evidence that the facility had “clear knowledge” Ian would be a danger to other residents.

But when Stevens sued The Point, her lawyer, Felicia Curran, discovered that Ian’s agitated behavior, including pushing and shoving, had been the reason his wife initially placed him there. At The Point, he had punched one aide in the shoulders, grabbed another by the neck and jumped on a third and beaten her, employees said in statements taken by Curran.

“It was an everyday thing for him to chase staff and be physically aggressive,” one declared. Aides posted a photo of him in their kitchen, warning colleagues to watch out for his violent outbursts, and employees once locked themselves in bathrooms for protection, according to records in the case.

“They should have never had him there in the first place,” Stevens said.

Tracee DeGrande, the president of Integral Senior Living, which owns The Point, wrote in a statement that the episode was not typical. “Our staff associates work hard to care for residents, many of whom would have nowhere to go if we didn’t provide a place for those living with dementia and Alzheimer’s disease,” she wrote.

After the attack, The Point evicted Ian. Deloney returned to the facility, but, less stable after surgery, she fell and broke her hip again. She stopped eating and died that December, according to her family’s lawsuit, which blamed The Point for not increasing supervision in light of Deloney’s weakened state.

The Point paid $1.9 million to settle the case. DeGrande wrote that the “settlement was in no way an admission of responsibility for what ended up as a difficult and sad situation.”

To calm agitated residents, some facilities are too reliant on psychotropic drugs, which carry increased risk of strokes, falls and confusion. An in-progress study funded by the National Institutes of Health has discovered that 27 percent of residents with dementia take an antipsychotic medication, and most lack documentation assuring the drugs are justified, said the lead investigator, Sheryl Zimmerman, a health researcher at the University of North Carolina at Chapel Hill.

Zimmerman said such drugs are often not necessary if residents are cared for by experienced aides who can de-escalate troubling behaviors and know techniques that engage and soothe those with dementia. But she said low pay and frequent turnover make that difficult. “The workforce could be better trained than they are,” Zimmerman said.

Requirements Vary By State

Staffing and training requirements vary greatly from state to state. A study published in 2016 and led by Paula Carder, a professor at Portland State University, found that only seven states required facilities to have a registered nurse. States required anywhere from two to 30 hours of training for dementia unit workers. A handful of states required no specialized training, according to the study. Carder found that 19 states set minimum staff-to-resident ratios for dementia units, while the others left it to the facilities.

North Carolina requires one of the tightest staffing ratios in the nation for dementia units: one worker for every eight residents during the day and evening.

Many of these are for-profit entities. They are setting staffing ratios that maybe aren’t being set because of the care needs of the residents but are more about the bottom line of their profits.

Fred Steele, Oregon’s long-term care ombudsman

In a lawsuit, Michele Mullen asserted that Franklin Manor Assisted Living in Youngsville, N.C., did not meet North Carolina’s staffing minimums on a third of the days her mother, Claire Murphy, lived there in 2015 and 2016.

She said she would find her mother with her pants wet with urine all the way down to her knees, according to a deposition she gave in the lawsuit. Mullen said aides had repeatedly misplaced her mother’s walker. She would see her mother holding onto the hallway railing as she tried to get to her room. On New Year’s Day in 2016, her mother fell and was hospitalized for a fractured arm.

Gregory Nicoluzakis, the general counsel for Saber Healthcare Group, which owns Franklin Manor, said in an email that Mullen’s allegations were inaccurate. “We believe it is telling that Ms. Mullen admitted her mother to our facilities on three separate occasions despite having the choice of other providers,” he wrote.

Drew Hathaway, an attorney for Mullen, said there were no better alternatives nearby that had memory care units. “There are not that many facilities in these rural areas,” Hathaway said. “That’s the sad reality.”

Franklin Manor was fined in 2016 for not following doctors’ orders that two residents needed to use walkers. In February, the state cited it for not supervising five residents, all with histories of falling, who had fallen and injured themselves. Nicoluzakis said Franklin Manor was in compliance with state regulations.

Mullen ultimately removed her mother from Franklin Manor; Murphy died last December.

“I would say, ‘Mom needs to go to the bathroom.’ ‘Mom needs help with this,’” Mullen recalled in her deposition. “And they would look at me and actually say, ‘Why don’t you do it?’”


KHN’s coverage of these topics is supported by
The SCAN Foundation
and
Gordon and Betty Moore Foundation

In California, Doctors Accused Of Sexual Misconduct Often Get Second Chances

The doctor instructed his patient to stand in front of him. He cupped her crotch and inserted his fingers into her vagina through her clothes, moving his hand repeatedly to her rectal area. Then he squeezed her breasts, according to a formal accusation filed by the Medical Board of California.

The patient, accompanied to the appointment by her 4-year-old granddaughter, asked why that was necessary to diagnose a urinary tract infection, according to the documents. He told her to let him do his job.

In three other cases, the board alleged that the family doctor, Ramon Fakhoury of California’s Inland Empire, touched patients’ genitals for no medical reason. In 2016, the board handed him 35 months of administrative probation, requiring him, among other things, to have a chaperone when treating females.

Fakhoury did not admit to the allegations, according to his attorney, and criminal charges against him were dropped. If he successfully completes probation next year, he’ll be able to practice without restriction.

The Medical Board of California put family physician Ramon Fakhoury on 35 months of probation after several patients alleged he had touched their genitals for no medical reason. Until he completes probation, he must have a chaperone present when treating female patients. He did not admit to the allegations. Previously, he faced felony sexual abuse-related charges, which were dismissed after a jury deadlocked. (Courtesy of the San Bernardino County Sheriff’s Department)

With a mission of patient protection and doctor rehabilitation — not punishment — California’s medical board and those in other states make decisions under laws and norms that can seem discordant in the #MeToo era.

California is often cited as one of the more rigorous states in overseeing doctors. But, according to the medical board, very few sexual misconduct complaints are reported to the board in the first place, historically under 200 a year. Even fewer result in a formal accusation against a doctor. And when discipline is found to be warranted — typically in fewer than 20 cases a year — the board tends toward leniency, sometimes granting a few years of probation even in instances of severe misconduct, according to a KHN analysis of medical board records.

More than a third of doctors sanctioned by California’s board in cases that alleged sexual misconduct received probation in the past 10 years — some more than once. The terms of probation — which is not a criminal court action but places conditions on a physician’s license — often required temporary chaperones, as well as psychotherapy and courses in “professional boundaries” and ethics. (Through probation, the medical board can only place conditions or restrictions on a doctor’s license in civil proceedings; it does not take criminal court actions.)

“They love giving second chances” to physicians, said Marian Hollingsworth of San Diego, a frequent critic of the California medical board. “It makes you wonder where their priorities are. … Their first loyalty is supposed to be patient safety and that doesn’t always happen.”

The recent, shocking reports about years of abuse by USA Gymnastics doctor Larry Nassar and University of Southern California gynecologist George Tyndall — as well as national exposés about physician misconduct by the Atlanta Journal-Constitution and the Associated Press —have only intensified concerns about whether sexual abuse is taken seriously enough in medicine.

Nassar, accused of abuse by scores of girls and women under the guise of medical treatment, is now serving what amounts to a life sentence. Prosecutors are considering criminal charges against Tyndall in more than 50 cases, and the state medical board has suspended his license while seeking revocation. He has denied the allegations.

Larry Nassar sits in court on Feb. 5, in Charlotte, Mich., before being sentenced for three counts of criminal sexual assault. Nassar, accused of abuse by scores of girls and women under the guise of medical treatment, is now serving what amounts to a life sentence. (Scott Olson/Getty Images)

And just last week, 17 women sued Columbia University and its affiliated hospitals, alleging that the facilities engaged in covering up decades of sexual abuse by one of its OB-GYNs.

Research has shown that many doctors who sexually exploit patients, like other perpetrators of abuse, don’t stop with one victim. They “perpetrate such behavior for years before being stopped,” said the authors of one study.

Against this backdrop, California Gov. Jerry Brown in September signed landmark patient protection legislation requiring doctors who are on probation for sexual and other serious misconduct to notify patients of their status and the terms under which they must practice. It will take effect next July. The bill had failed twice before.

“It’s time,” said the bill’s lead author, Sen. Jerry Hill (D-San Mateo). “The #Me Too movement has really made it very clear that there are individuals even in the most respected professions who abuse their authority.”

Even as sexual abuse complaints filed with the medical board rose significantly in the past year to coincide with the rise of #MeToo, board officials say they plan no major changes in how the board dispenses discipline in sexual misconduct cases.

The #MeToo movement “has not changed us,” said the board’s executive director, Kimberly Kirchmeyer. Cracking down on sexual misconduct has always been “one of the board’s top priorities,” she said.

Digging Into The Records

KHN examined all 135 cases of alleged sexual abuse investigated by the board that resulted in sanctions from July 2008 through June 2018. (The analysis did not include discipline based on proceedings in other states.)

More than a third of sanctions were for sexual misconduct with more than one victim, and the vast majority of alleged perpetrators were men accused of exploiting women.

Doctors’ licenses were revoked in 39 cases and voluntarily surrendered in 38. Several doctors received public reprimands — a minor sanction.

The largest share of sanctions — 49 cases, or more than a third — were for probation.

According to the board’s disciplinary guidelines, the minimum probation period is seven years for a doctor found to have engaged in sexual misconduct — whether it is a sexual relationship with a patient, sexualized touching during exams or inappropriate sexual conversation.

But those “minimums” were not applied in more than half of the probation cases, according to the KHN analysis. The guidelines allow exceptions based on “mitigating circumstances,” the age of cases, the quality of evidence and other factors.

Kirchmeyer noted that the board treats every case as unique and places a high value on a doctor’s remorse and acknowledgment of wrongdoing.

In eight cases, KHN found, a doctor sanctioned for sexual misconduct had previously been sanctioned for similar misconduct.

Dr. Patrick Mark Sutton, a Pasadena obstetrician-gynecologist, received probation twice — the first time for four years after investigators alleged sexual misconduct in 2002. In 2011, he was placed on probation again — this time for three years — following allegations that he improperly rubbed a patient’s thigh and engaged in inappropriate sexual conversation.

He denied all sexual misconduct allegations in 2002 and 2011, admitting only to medical record-keeping violations in both cases.

This September, after he had completed mandated ethics and “boundaries” courses, the medical board filed a new accusation against Sutton, saying that he had called a patient “hairy” and asked the patient, who was naked from the waist down under a drape and in stirrups exposing her genitals: “Do you enjoy orgasms? You are a very beautiful woman,” according to the documents. That case is pending.

Sutton’s lawyer, Gary Wittenberg, said in an emailed statement that “the allegations in the pending Accusation are untrue and we will prove that in court.”

In several cases, the board granted probation knowing the doctor had been convicted of misdemeanor criminal charges stemming from sexual abuse investigations.

Fakhoury, the Inland Empire doctor, had faced felony sexual abuse-related charges but was not convicted due to a hung jury, according to San Bernardino County Superior Court records.

His lawyer, Courtney Pilchman, told Kaiser Health News that the criminal charges were dismissed afterward and that the doctor “did not stipulate” to — or admit to — the medical board accusation.

By contrast, Ohio’s medical board, upon learning of California’s sanction, in 2012 revoked his state license.

The number of disciplinary actions taken over the decade is strikingly small given the size of California’s practicing physician population of more than 100,000. Alleged victims of sexual abuse by physicians are significantly less likely to come forward than sexual abuse victims in general, some research indicates.

However, numbers provided by the medical board suggest that many of the complaints that are filed — whether by victims themselves or other sources — do not result in formal accusations against doctors. From October 2013 through June 2018, 838 complaints were designated by the board as possible sexual misconduct. During that same period, 74 accusations were filed. (Multiple complaints could be filed about one doctor.)

Experts and lawyers familiar with the board offered various explanations: Some complaints may be false. Doctor sexual misconduct can be hard to prove by “clear and convincing evidence,” as required in medical board cases. Accused physicians often hire experienced lawyers who aggressively fight back, leading to delays and deals. Victims may decline to testify or present poorly as witnesses.

Some victims, for instance, have psychiatric disorders or believe that they were engaging in a “consensual” relationship, according to medical board documents.

Board staff have worked hard to treat alleged victims sensitively, Kirchmeyer said. Expert reviewers are instructed to read complaints as if the person is telling the truth, she said, and the board plans weeklong training sessions to help investigators work better with alleged victims and prepare them for testifying.

The cases often drag on. It can take years for victims to come forward in the first place — and more time for cases to wind their way through the state’s complex bureaucracy. Evidence can go stale.

“Physicians have to have due process,” Kirchmeyer said. “Anyone can make a complaint about anyone at any time.”

Tracy Lystra at her home in Aguanga, Calif. (Heidi de Marco/KHN)

‘Slap In My Face’

Facing what they see as an uphill battle, lawyers from the state Department of Justice, who handle administrative hearings, will sometimes pre-emptively recommend probation — even in serious sexual misconduct accusations — to avoid the possibility a doctor will get no sanction at all from a judge, said Laura Sweet, a former deputy director who retired in 2015.

Sweet, who worked for the medical board for 23 years, said the legal process focuses on the doctors and does not always give sufficient weight to the pain of alleged victims. “You’re sending a message that’s potentially minimizing what the victim endured.”

That’s how Tracy Lystra sees it, too. In 2013, Lystra sued her Fallbrook, Calif., OB-GYN, Anthony S. Bianchi, alleging that he harassed her with comments about her body and how she aroused him, whispering into her ear as she lay on a gurney before surgery that she looked like a “sexy librarian.” She said the case, which also alleged medical negligence, was settled for $150,000 in 2016. Bianchi, who could not be reached for comment, denied the allegations in court documents.

Through her attorney, Lystra filed a complaint to the medical board shortly after settling with Bianchi. This past July, she received a letter from the board saying it would not be able “establish grounds for discipline” against Bianchi in her case, “considering all the evidence and mitigating factors.”

Ultimately, she learned that the board had received complaints from other women.

In 2014, Bianchi had been put on five years’ probation after the board accused him of making inappropriate sexual remarks to two patients, telling one he dreamed of having oral sex with her and couldn’t stop staring at her breasts. After learning of these cases, another woman came forward, alleging Bianchi several years earlier had blocked his office door with a chair, inserted his fingers into her vagina, exposed his penis and asked her for sex.

The board’s penalty was another five years’ probation. But the two probation terms overlap — and Bianchi, who agreed not to contest the allegations as part of the settlements in each case, could go back to work as an OB-GYN without restrictions in 2021. In the meantime, he is not allowed to treat female patients.

Learning that Bianchi received such a light punishment — and that the board would not take action on her own complaint — was crushing, Lystra said, noting that it had been so difficult to get anyone, including her family, to believe her.

“I really wanted him stopped. It was so disappointing when medical board responded the way it did,” Lystra said.“It was a slap in my face.”

Methodology

In its analysis, KHN requested every sanction for sexual misconduct issued by the Medical Board of California over the past 10 years, the name of each doctor involved and his or her license number. The board responded with 181 actions against 175 doctors from fiscal year 2008-09, beginning in July, through fiscal year 2017-2018, ending in June. (The records were designated by the board as primarily for sexual misconduct but often included other allegations.)

KHN used the board’s document lookup search on its website to review its available public records on each doctor. KHN mentioned sanctions outside the 10-year period when records showed the doctors were repeat offenders.

The analysis excluded cases in which the board took action in response to sanctions issued by other states’ medical boards for sexual misconduct outside California.

For each sanction, KHN determined the number of alleged victims identified in the board’s accusations, their gender, type of sanction, length and terms of probation, type of alleged sexual misconduct and whether the board took note of any previous or concurrent criminal proceedings.

KHN also requested the number of complaints the board received alleging sexual misconduct, and how many formal accusations the board filed each year after the allegations were investigated and merited disciplinary action. The board did not have data for all 10 years, but provided the number of complaints received and the number of accusations filed from October 2013 through the end of the 2017-18 fiscal year.


KHN’s coverage of these topics is supported by
California Health Care Foundation
and
The David and Lucile Packard Foundation

This story was produced by Kaiser Health News, which publishes California Healthline, a service of the California Health Care Foundation.

More Than Half Of California Nursing Homes Balk At Stricter Staffing Rules

More than half of California’s nursing homes are asking to be exempted from new state regulations that would require them to spend more time directly caring for their patients.

The state’s new staffing requirements for nursing homes, quietly passed in last year’s budget bill, seem universally unpopular. Patient advocates say the new regulations don’t go far enough and that residents remain at risk in poorly staffed homes. Nursing home operators say they can’t hire enough staff to comply.

Under the new rules, which took effect in July but haven’t yet been enforced, skilled nursing facilities must provide at least 3.5 hours of direct care per resident per day, up from 3.2 hours of care previously. That care can range from inserting a feeding tube to changing an adult diaper or helping residents with eating and bathing.

The California Department of Public Health, which oversees nursing homes, is expected to announce in late January which — if any — facilities it will exempt from the new regulations. But some patient advocates don’t like the nursing homes’ balking.

“We’re appalled by the waiver system. It’s sending the worst possible message to California nursing homes that it’s OK to staff at levels that endanger residents,” said Mike Connors of California Advocates for Nursing Home Reform, a consumer advocacy group.

(Check to see which California nursing homes have applied for workforce shortage waivers here and here.)

Researchers have strongly linked more nursing staff with better care, with some experts recommending from 3.8 to 4.1 hours of care per patient per day as a bare minimum for quality nursing home care. Having enough staff helps prevent falls, pressure sores and other problems that can land fragile seniors in the hospital.

A recent Kaiser Health News investigation found that for years nursing homes nationwide overstated staffing to the federal government. Now, nursing homes are required to report actual payroll records to remain eligible for Medicare and Medicaid payments.

During the first three months of 2018, 58 percent of California’s skilled nursing facilities averaged at least 3.5 hours of patient care a day, according to a Kaiser Health News analysis of payroll records submitted to the federal government. That rose to 76 percent when including nursing homes where administrators also were counted.

California is one of only a few states that set their own minimum requirements for nursing home staffing. Most states abide by federal government standards requiring skilled nursing facilities that receive money from Medicare or Medicaid to have enough staff to meet residents’ needs, said Robyn Grant, director of public policy and advocacy for National Consumer Voice for Quality Long-Term Care, an advocacy group.

Illinois requires nursing homes to provide a minimum of 3.8 hours of care per patient a day and the District of Columbia requires 4.1 hours, Grant said. Maine and Oklahoma take a different approach, establishing staff-to-patient ratios, rather than hours of care, for nursing homes.

Nursing home officials and their lobbyists say it’s tough to find qualified nurses and assistants in California’s robust economy, and they bemoan what they describe as inadequate reimbursement from Medicare and Medicaid. They also have criticized a provision of the new requirements that 2.4 of the 3.5 hours of patient care must be provided by a certified nursing assistant, rather than another nursing professional.

Nursing homes need flexibility because “not every patient is the same, not every diagnosis is the same,” said Matt Robinson, legislative affairs director for the California Association of Health Facilities, an industry group. “We’re not opposed to more staff. But we want quality staff. We want to make sure there’s a sustainable workforce to meet that mandate, otherwise it’s just an empty mandate.”

Robinson said facilities are applying for waivers on a “good-faith basis.” If waiver requests aren’t granted, he said, nursing homes may reduce their beds or even shut down.

In Los Angeles, the 300-bed Kei-Ai Los Angeles Healthcare Center has applied for an exemption citing a “workforce shortage.” But Cynthia Sakaki Sirlin, whose 86-year-old father, a veteran of the Korean War, lives there says, “I think it’s wrong.”

“I don’t know why they’re doing this. They need more nursing staff to improve patient care, not less, the research shows that. So why are they asking for a waiver? Why is the state allowing them? That just rewards owners who are not willing to staff the homes,” Sakaki Sirlin said.

Sakaki Sirlin, a nurse practitioner and a representative of Kei-Ai’s family council, said that since the formerly nonprofit nursing home was purchased by a real estate developer in 2016, she has noticed more staff turnover. She worries that her father, a wheelchair user who can’t feed himself, won’t get the care he needs. Representatives from Kei-Ai did not respond to a request for comment.

There are nearly 100,000 certified nursing assistants in California, according to federal labor data. Patient advocates say many CNAs choose not to work for nursing homes because of the comparatively low pay and tough workload.

“If they paid them better, they’d have plenty of staff,” even in remote parts of California, said Suzi Fregeau, long-term care program manager in Humboldt and Del Norte counties. The mean hourly wage for certified nursing assistants in California was $16.13 in 2017, according to federal labor data.

Some of the California homes seeking exemptions have been repeatedly cited by the state’s Department of Public Health for inadequate staffing that led to patient harm. Among them are homes owned by Shlomo Rechnitz, who reportedly controls 1 in 14 nursing home beds in California. He has faced numerous federal and state probes of understaffing and quality problems at his homes.

The CEO of one of Rechnitz’s nursing home management companies said in a written statement that several homes submitted “patient needs” waiver requests on their own with data provided by the company. “All of these facilities prioritize the needs of their patients above all else and these facilities have a stellar history of complying with applicable staffing requirements,” said David Silver, CEO of Rockport Administrative Services LLC.

“What we’re seeing is that the facilities that already are understaffed — the facilities for which we do get complaints — are the ones asking for waivers,” said Joe Rodrigues, the state’s long-term care ombudsman. “We’re not supportive of those requests.”


This story was produced by Kaiser Health News, which publishes California Healthline, a service of the California Health Care Foundation.