If you saw someone punch a disabled person with a closed fist on a street corner, most people would call the police. But when it happens behind the closed door of a nursing home, the response tends to be less clear-cut.
At least that’s what staff attorneys from Disability Rights California found in a report issued this week that explores 12 cases of abuse against elderly or disabled people in California nursing homes. The nonprofit advocacy group's report is called "Victimized Twice: Abuse of of nursing home residents, No criminal accountability for perpatrators."
Although nursing home employees are bound by “mandated reporter” laws that require them to immediately report abuse to authorities, that does not always happen.
Abuse tends to be most efficiently reported to the Department of Public Health, which licenses nursing homes, the report shows. It also tends to get to elder care ombudsmen, who are valid recipients of reports that caretakers are obligated to share.
But care workers are far less frequently calling criminal investigators, the report finds. And that's key, the report suggests, since an ombudsman who does not get consent from a victim to go forward with an investigation is left with no legal option but to drop the matter.
The report's authors interviewed the state attorney general’s elder abuse specialists, who said that they provide a mandatory training video to nursing homes on employees’ duty to report abuse to authorities immediately, but:
“Facility administrators will instruct them to the contrary. The facility administrator makes the determination about whether an incident is reportable. So reports made are siphoned through the facility filter.”
It instills a culture of responding to abuse as administrative concerns rather than serious criminal matters.
Pamila Lew, a staff attorney and author of the report, said while examining the 12 cases detailed in the report, she saw that some startling cases got little or no law enforcement attention.
“When you’re in a facility, the life of a facility is its own internal world,” Lew said. “In a facility’s culture, it can become known that you can get away with a lot of things.”
The report criticizes the tendency of some nursing homes to investigate claims of abuse internally before reporting them to an outside authority such as the elder care ombudsman, law enforcement or the attorney general’s office. By then, it’s too late to collect evidence or build a solid case that can be proven in court. And, in some cases, the report says:
The internal investigation process means that some incidents may not be reported to outside entities, depending on the outcome of the internal investigation. As described by one ombudsman, “The supervisor investigates and decides it didn’t happen.”
All said, Leslie Morrison, an attorney and director of the Disability Rights investigations unit, does not believe the report calls for any new laws or regualtions. She said the laws on the books are strong, but there is insufficient statewide leadership to ensure that the laws are strictly followed.
"Yes, the system is seemingly in place, but there are gaps and lapses at every step of the way," Morrison said.
The report includes vignettes about several cases that its authors culled from citations issued by the Department of Public Health. One illustrates the points they make about abuse that is never exposed to outside scrutiny. The case was analyzed for the nonprofit advocacy group by Dr. Diana Koin, a physician who specializes in geriatrics and serves as an expert on elder abuse.
Luis Aguilar is a 41-year-old man with multiple physical disabilities, including head trauma and associated memory problems. Late one night, a staff member noticed blood on his mouth and a cut to his upper lip. She asked him what had happened. Luis answered that a male CNA had hit him with a closed fist and then slapped him on the face.
The facility launched its own investigation but failed to photograph the injury and only conducted a cursory physical assessment. According to Dr. Koin, Disability Rights California’s medical expert, “When people are hit, the mouth is injured internally from contact with the teeth. If a person is struck, then not only does the external lip show some evidence of injury, but the tissue, the mucosa inside the lip shows damage. The facility incident report states clearly that there was a cut with discoloration at the affected site.”
Two days later, the facility administrator notified the ombudsman but did not call law enforcement even though Luis’ description of the event qualified as an assault. The facility doctor evaluated Luis five days later and found no evidence of injury, not surprising given the time delay.
Ultimately, the facility concluded that the injury was a result of chapped lips or poor oral hygiene, both of which, according to Dr. Koin, indicate resident neglect if true. Dr. Koin disputes this conclusion, finding the description of the injury in the incident report is consistent with a blow to the mouth, not chapped lips.