Beshear ordered the Cabinet for Health and Family Services to conduct the review after the Lexington Herald-Leader examined 107 citations issued by the agency over a three-year period in instances where a resident's life or safety has been endangered.
The newspaper found that only seven of the 107 cases of nursing home deaths or abuse were prosecuted as crimes and that police and coroners are rarely notified of nursing home deaths or serious injuries.
“This review will be an essential document to guide the many groups that have an interest in maintaining safe nursing homes, and to ensure that proper procedures and accountability are maintained when investigations are required for suspected cases of neglect or abuse,” Beshear said in a statement.
The citations reviewed included 18 deaths, 30 hospitalizations, five broken bones and two amputations that resulted from violations of state regulations, the newspaper reported. Thirteen residents were injured because of lapses by staff members, according to the citations.
Beshear asked cabinet Secretary Janie Miller to review state agencies' coordination with local prosecutors and law enforcement to handle the reports, the newspaper reported.
Representatives from the industry, law enforcement and victim advocates were involved in the review.
Miller said the review found, for example, that law enforcement officials sometimes weren't certain who to contact at the cabinet regarding abuse and neglect cases.
She said one of the recommendations to be implemented is the creation of regional Adult Protective Services teams, which will have more clear guidelines in working with law enforcement.“That was identified as a significant improvement from the voices of law enforcement,” she said in an interview. “They get better at it, and we get better at communicating with them if we have just one or two people involved, rather than 10.”
“We think that it's about time the governor of the commonwealth start making elder care a top priority,” he said.
Vonderheide, who said he had not reviewed the report, said he is glad to see a recommendation to revitalize an Elder Abuse Committee that is inactive.
Miller acknowledged the committee rarely meets and has done little to monitor nursing home abuse investigations, which it is charged with doing under state statute.
She said she doesn't know why the committee has been inactive since before she became cabinet secretary.
“This will be an important place where a lot of stakeholders can be involved in how those recommendations are implemented,” she said.
Miller said the review is the beginning of the process of reforming the way nursing home abuse and neglect cases are handled.
Attorney General Jack Conway, who participated in the process, recommended stiffer penalties for nursing home abuse and neglect and for failure to report abuse and neglect.
“We appreciate Gov. Beshear leading efforts to ensure the Cabinet for Health and Family Services is communicating and coordinating with other state agencies in order to more efficiently and effectively investigate elder abuse and neglect cases,” Conway said in a statement.
Although the state sends reports of the most serious nursing home regulatory violations to the attorney general's office, that office can prosecute only with the permission of local prosecutors.
And local prosecutors say they seldom hear about the cases.
Miller said the final report did not include Conway's recommendations because the legislature would have to amend state law. The report, she said, made recommendations that the cabinet could implement immediately.
“We're assuming that continued work will happen,” she said. “I don't know where that will take us at this point.
Tim Veno, president of the Kentucky Association of Homes and Services for the Aging, said in a statement that, “While instances of abuse and neglect in Kentucky's Long Term Care facilities are not the norm, even one instance of abuse is one too many.”Reporter Stephenie Steitzer can be reached at (502) 875-5136.
"From a nursing home employee....
I have been in health care for 26 years. I can remember when we had enough staff to care for our fellow Kentuckians, sometimes seeming as if we were family. Now it seems Boards and Administrators of care facilities keep just enough staff to run a "production plant" or "assembly line.” We are so understaffed.
It's painful to know there is care you can't give because there is just not enough staff. Most of my day is spent giving just the minimal amount of care, enough to make sure my residents are comfortable, when they deserve so much more.
And, I am yet to see a state or ombudsman visit where the facility didn't know in advance. Oh, but it is on these days that we have proper staff, until the visit is over, then it is back to the same staffing shortage, and minimal care.
Our elderly Americans should be our most celebrated citizens. It is they who prayed for us, raised us, built our schools, roads, and fought in wars to protect our rights, and freedoms, in hopes that their later years would be comfortable and worry free. But the sadness is they lose everything they worked for all their life for payment for care they don't and can't receive.
I enjoy my residents and the service I can give them, have grown quite fond of them, and in some instances, I am the only face they see. I would regret losing that bond, which is where my dilemma lies. I don't want to lose my job. But I would dearly love to see the media get involved and bring this petition to the average Kentuckian, would even talk to the media myself, but I am not sure how to proceed. Any advice in how I could help would very much be appreciated."
We need your help now more than ever, conact Kentuckians for Nursing Home Reform to find out how you can help.
"I want this to be a lasting victory for all individuals with TBI or other disabilities living in assisted living centers or group homes," said Lydia Scherrer, widow of Earl Scherrer, who died May 7, 2006, at the age of 36.
Earl Scherrer suffered a severe traumatic brain injury as a result of a car accident in 1996. He lapsed into a coma and was not expected to recover. Despite doctors' assessment that Mr. Scherrer's condition was permanent, Lydia Scherrer refused to disconnect her husband's life support. Earl Scherrer remained in a coma for 16 months before he began to slowly emerge. With his wife's nurturing and support, he slowly started to speak, albeit slowly. Mrs. Scherrer worked with her husband day after day, using first-and second-grade reading and math textbooks and other elementary learning tools to stimulate his brain function and coax him to reach his full potential.
Lydia Scherrer devoted many hours per week to her husband's recovery, but she also had to work and was forced to turn to assisted living and residential facilities to provide the 24-hour care her husband needed. For years, she visited him faithfully on her days off, every Tuesday and Wednesday, checking him out of the facility and taking him home.
On April 7, 2006, Mrs. Scherrer placed her husband in Liberty Manor Residency, a facility that purported to provide 24-hour supervision of its residents. One month later - on May 7, 2006 - she received a call saying her husband had been vomiting. Mrs. Scherrer rushed over to Liberty Manor, brought her husband home and gave him a bath. Within a matter of minutes, he began vomiting black matter and died in her arms.
Autopsy results showed a number of items - including plastic bags, unopened catsup packets, candy wrappers and paper towels - were found in Earl Scherrer's stomach and small intestines. The medical examiner determined these foreign objects were significant contributing factors to his death. The autopsy read in part, "hypertensive heart disease due to mechanical obstruction of the GI [gastrointestinal tract] from the foreign objects."
Lydia Scherrer, represented by Craig Knapp, of the Scottsdale law firm of Knapp & Roberts, brought claims against Liberty Manor for abuse and neglect, wrongful death and punitive damages.
At trial, it came to light that Liberty Manor made numerous false entries in its charts with respect to Earl Scherrer's care, including notations of care on days when Mrs. Scherrer had checked him out of the facility. Liberty Manor was also unable to produce Mr. Scherrer's alleged caregiver, an employee named Raul.
"Lydia Scherrer did not walk away from her husband, in life or in death," said her attorney, Craig Knapp. "Her hope is that this verdict will force the assisted living facility industry to set and meet higher standards of care for their residents, resulting in enhanced protections for the defenseless individuals trusted to the care of others.
HOUSE BILL 318…
COMES UP FOR A VOTE
IN THE HOUSE HEALTH & WELFARE COMMITTEE
THIS THURSDAY FEB. 19
AT NOON IN ROOM 169
OF THE CAPITOL ANNEX
THIS IS THE BILL THAT WILL REQUIRE
ALL NURSING HOMES IN THE STATE
TO POST THEIR RATING
BY THE NEW FEDERAL FIVE-STAR RATING SYSTEM
IN A PROMINENT PLACE IN THEIR FACILITY.
HERE'S WHAT YOU CAN DO
TO HELP GET THIS BILL PASSED AND
OUT OF THIS COMMITTEE AND ON TO
A VOTE ON THE FLOOR OF THE HOUSE.
1. Call 1-800-372-7181 and ask the operator to send a message to the members of the House Health & Welfare Committee telling them that you want them to vote for HB 318.
The members of the Health & Welfare Committee are:
Rep. Tom Burch, Louisville (chair)
Rep. Bob DeWeese, Louisville (vice chair)
Rep. David Watkins, Henderson, (vice chair)
Rep. John Arnold, Sturgis
Rep. Scott Brinkman, Louisville
Rep. John "Bam" Carney, Campbellsville
Rep. Robert Damron, Nicholasville
Rep. Brent Housman, Paducah
Rep. Joni Jenkins, Shively
Rep. Mary Lou Marzian, Louisville
Rep. Reginald Meeks, Louisville
Rep. Tim Moore, Elizabethtown
Rep. Darryl Owens, Louisville
Rep. Ruth Ann Palumbo, Lexington
Rep. Susan Westrom, Lexington
Rep. Addia Wuchner, Burlington
2. If you are a constituent of any of these, be sure to tell them that in your message.
3. Follow up your call with a brief e-mail to each of them. You can get their e-mail address by going to
4. Attend the meeting yourself. Come early and meet every committee member telling him or her you would like their vote for HB 318. Don't be bashful. Legislators are very nice people and will be happy to talk to you.
And if you can, thank them afterwards for their support.
5. Call me if you have any questions……
KENTUCKIANS FOR NURSING HOME REFORM
1530 Nicholasville Road
Lexington, KY 40503
Tel: (859) 312-5617
THE ARBITRATION FAIRNESS ACT
MYTHS AND FACTS
The Arbitration Fairness Act (AFA) would continue to allow voluntary arbitration while preserving the right to trial by jury. The bill would prohibit a corporation from forcing a consumer into a rigged mandatory arbitration system where the corporation hand-picked the arbitrator and all of the rules of the process before a dispute even occurred.
Myth: The AFA prohibits arbitration.
Fact: The AFA encourages voluntary arbitration; it only prohibits corporations from forcing mandatory clauses on consumers without them having a chance to negotiate the terms and often without them knowing about it.
Example: When admitting his father into a nursing home, Charles Miller Jr. signed a lengthy contract that, unbeknownst to him at the time, contained a binding mandatory arbitration clause. His father was not seen by a physician until three weeks after his admission, during which time he lost 19 pounds and suffered from dehydration and pneumonia, all of which led to his death. Charles Miller Jr. filed a claim against the nursing home corporation, but a court held that because he had signed this contract, he would be forced into arbitration for his claims against the nursing home, under the terms the nursing home corporation chose to put into the contract. Because Charles Miller Jr. had unknowingly signed a contract that contained a mandatory arbitration clause before any dispute had arisen, he was bound by its terms, no matter how unjust.
Myth: Most consumers favor binding mandatory arbitration.
Fact: Consumers favor voluntary arbitration and being given the choice to arbitrate. Would an employee with a claim against Halliburton want Halliburton deciding how her claim should be handled? Would a homeowner with a claim against his home contractor want the contractor deciding how his claim should be handled?
The Chamber of Commerce's recent study, which purported to show that voters did not support HR 3010, asked voters: "If you could choose the method by which any serious dispute would be settled between you and the company, which would you choose?" (Emphasis added.) But what they didn't tell these voters is that binding mandatory arbitration takes away a consumer's choice. Under the current system, consumers are not allowed to choose which option is best for them. They are not allowed to choose to file a claim in court nor are they allowed to choose who the arbitrator will be, or even what state they will have to arbitrate the claim in. Instead, they are forced into an arbitration system that is set up to favor the corporation and trample on the rights of the consumer. When consumers are given the choice to arbitrate after a dispute has arisen, they gain bargaining power and are better able to enter into an arbitration system that is fair.
Myth: Arbitrators are neutral, unbiased decision-makers.
Fact: Binding arbitration favors corporations because only corporations are repeat users of arbitration companies.
If an arbitration company wants to be used in a company's mass consumer or employment contracts, the arbitration company has a huge financial incentive to appear favorable to those businesses in arbitration proceedings. Why would a company choose an arbitrator that rules against them?
Myth: Arbitration is cheap and more accessible to consumers.
Fact: Arbitration is so expensive that most consumers will not be able to pursue their claim against a corporation because they can't afford the costs of the arbitrator.
Under mandatory arbitration clauses, consumers must pay steep filing fees just to initiate a case-seldom less than $750 – and pay their share of the arbitrator's hourly charges, which are routinely $400 or more per hour. All these fees must be deposited in advance and almost always amount to thousands of dollars. In addition, arbitration clauses often allow the corporation to choose the location, regardless of how inconvenient or costly travel will be for the consumer.
Myth: Arbitrators are like judges; they have to follow the law and publicly state the reasons they made their decision.
Fact: Arbitrators are not bound by any laws. They do not have to follow the law and they don't have make public or even provide to the consumer any explanation for ruling the way that they did.
Most arbitration clauses require that proceedings be kept confidential, even if the case raises important public policy issues. As a result, only the corporation can track past decisions and know which arbitrators have ruled for them. In addition, arbitrators do not set or follow judicial precedent, something our judicial system requires to ensure consistency and fairness in legal proceedings.
Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.
The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate overall staffing.
|Rank||State||Total, all nursing homes||1 star|
|7||New Mexico||46||37.0 percent|
|8||West Virginia||123||33.3 percent|
|10||North Carolina||386||30.3 percent|
Yesterday, the federal government rolled out a revamped and simplified approach to its evaluations of nursing homes, in order to make the onerous task of choosing the right one easier for families. Like the system the government uses for rating Medicare health and drug plans, the Nursing Home Compare site
now gives nursing homes from 1 to 5 stars, overall and in each of three areas—performance in the latest three quarterly reports in 10 key quality measures, such as the percentage of residents with urinary tract infections; performance in the latest three annual health inspections; and adequacy of both overall staffing and staffing by registered nurses.
The following 10 states have the highest percentages of nursing homes with the worst rating of 1 star for adequate staffing by registered nurses.
|Rank||State||Total, all nursing homes||1 star|
The Poppe Law Firm
8700 Westport Road
Louisville, Kentucky 40242
Phone: (502) 895-3400
Fax: (502) 895-3420
Toll Free: 1-855-864-8949