Day 4: Failure to Regulate
Weak Laws Let Deficient Facilities Stay Open
Demand for Assisted Living Care Pushes Virginia to Emphasize Improvement, Not Punishment
By David S. Fallis
Washington Post Staff Writer
Wednesday, May 26, 2004; Page A01
Last of four articles
When Albert Srebnick Sr. plummeted from a window to the ground three stories below, it was a tragedy foretold.
Srebnick, a 59-year-old suffering from schizophrenia, fell from Room 318 of Richmond's Madison Home, in August 2002, breaking his back and ribs and puncturing a lung. He survived but was hospitalized for several months and is now in a nursing home.
Months before, that very room had been singled out by state inspectors for unsecured windows. A manager had later assured the state that "all windows on the 3rd floor are locked and secured and have screens." Three years earlier, in February 1999, a resident had climbed out a window on the same floor, and staffers had to pull him back inside.
From 1999 through 2003, inspectors logged 270 violations at the home, including too few workers on duty, an employee beating a resident, failure to report a resident missing 11 days and unkempt residents sharing boxes of clothing. Repeatedly, the home promised to make changes.
After Srebnick's injury, state officials told the home's owner that they were not going to renew his license. But the home is still open.
As the assisted living industry has mushroomed, taking in sicker residents with a wider range of disabilities, state regulators have struggled to maintain their control. The Virginia Department of Social Services, which regulates assisted living along with numerous other social programs, has not expanded to keep pace with the industry. Fewer than 30 inspectors oversee more than 34,000 beds. Facilities routinely have run six months at a stretch with expired licenses because inspectors are overwhelmed.
"Our laws and regulation have not kept up with the changes," Deborah A. Lloyd, a Social Services licensing official, wrote in an e-mail to colleagues in 2003. "Just how many vulnerable victims have to die . . . "
Despite agreement between state officials and advocates that conditions in many facilities need serious improvement, there is little political momentum to substantially increase funding or strengthen regulations and oversight.
States across the country have grappled with problems similar to those in Virginia, triggering a debate over whether the federal government should step in and regulate or set guidelines, as it has with nursing homes.
Compared with Virginia, many states exercise stricter oversight and enforcement of assisted living. In 29 states, for example, regulators can impose fines greater than those in Virginia, where the maximum penalty is $500 per inspection. Some states, including Maryland, can impose fines of up to $10,000 for violations.
In a survey by The Washington Post, officials of 27 states responded that they can shut down troubled facilities immediately. In Virginia, regulators must go to court. Sixteen states mandate how many workers must be on duty. In most cases in Virginia, the only requirement is that workers are "sufficient" in number to care for residents and evacuate them in case of fire.
Records on Virginia facilities are so uneven that in many cases, state inspectors can't determine the extent of a home's problems or track patterns of bad care.
By stated policy, officials avoid closing down troubled facilities. This practice holds true even when residents have been injured or killed or violations have been noted by inspectors for years.
When inspectors finally move to close a facility, the process, with its many steps and appeals, can take more than a year. In the meantime, operators can continue to draw state funds to house the very people officials say are at risk.
"We are really not out there to put places out of business," said Carolynne Stevens, who has overseen the division of licensing for more than two decades. When a home is fighting closure by the state, she said, it often diverts resources to the legal battle, meaning even less money for care. Also, residents and their families often don't want a facility to close, which would force people to move, she said. The homes, she added, "are filling a need."
But Stevens also said that the state could do a better job spotting problems sooner: "I think we can improve . . . even within the tools we have now."
Numerous state-funded studies over three decades have cited concerns about the quality of care, insufficient oversight by the state and lack of funding. In response, state officials have beefed up regulations over the years, but more far-reaching recommendations -- mandating the minimum number of staff on duty, for example -- have been ignored.
Some owners say that state enforcement has gone too far.
"Man, this thing has really got out of hand," said Linwood Russell, who operates four facilities in the Richmond area. "This is no more than micromanagement of my business. . . . Trying to close facilities through penny-ante violations . . . like you got a light bulb out."
By contrast, some inspectors say the current regulations often create a standstill.
"You spend a lot of time going into these homes, following up on these complaints to try to be sure these people are getting a decent level of care," said Tamara Watkins, a licensing inspector in central Virginia. "You are spending a lot of time and effort and nothing is happening. Nothing is getting better."
Local Officials Take Action
With state officials moving slowly, some local authorities have stepped in. In Richmond, for example, code enforcement officials forced the closure of four facilities that the state had left open.
Among them was Crawley's, a one-time home for unwed mothers in southeast Richmond. Many of the residents were moved to Dooley Madison Retirement Home, a decaying 88-year-old structure downtown.
State licensing officials threatened to close Dooley Madison in 1999 because of "a long history of noncompliance." A teacher visiting the facility with medical students called inspectors to report that it was a filthy "hazard." Cockroaches were everywhere, and residents were lying in urine, she reported.
But the state didn't close Dooley Madison, and the home went on to violate state regulations more than 180 times, records show.
In January 2003, the city of Richmond used building codes to force the home out of business, citing "life-threatening" problems in the rotting structure.
Victorian Haven, a rambling home in tiny Elkton, Va., was well known to state investigators for years. They had fined the facility after caretakers went several days without medicating two patients. Inspectors fined it again when staff members took days to change a resident's bandages. And state officials had reprimanded the home after workers allowed a resident to wander out undetected. The resident was fatally struck by a car. An employee had written in the facility's logs that the resident was in the bathroom at the time.
But even as violations piled up, "Social Services continued to send them patients," said M. Lee Dearing, former Elkton mayor. When he heard complaints about the home, Dearing decided to visit.
"It was chaotic. There were 60 residents with one, maybe two, staff," he said. "They were feeding them applesauce and a little bit of nothing."
In May 2001, state officials warned Victorian Haven's owner that they were not going to renew his license but then started work on a plan to keep the home open. In the meantime, Dearing took the issue to the Town Council. In June 2001, the town revoked the home's local zoning permit.
"The state is not in the position to manage these facilities," Dearing said. "Dogs got better care than those people."
Kenneth Wayne Weaver, Victorian Haven's owner at the time, declined to comment. His attorney, Steven Blatt, said that Weaver had good intentions and that many of the problems were caused by a disgruntled administrator.
Once the town voted to pull the permit, state case managers withdrew residents, draining revenue to the home. Weaver appealed, but he "had no choice but to sell the business," Blatt said.
In its role watching over homes for the disabled, the state has created a system of second chances.
The guiding philosophy at the Department of Social Services is not to discipline troubled homes, but to help them improve. Agency manuals note that the licensing division is not "in the business of punishing violations when its real business is evaluating and achieving compliance. . . . The preferred objective . . . is to salvage the facility without causing undue or prolonged discomfort or heightened risks for consumers."
Inspectors are told to accomplish this by consulting with administrators at the homes, training staff, inspecting all facilities at least twice a year and investigating complaints.
Homes that can't meet basic standards when their licenses expire are given provisional licenses -- a six-month chance to correct the problems.
If problems are severe enough, regulators may impose fines of $500 per inspection, but that often takes months. More than 80 facilities have been fined in the past six years -- less than 10 percent of the total number licensed in that period.
The state has no explicit policy on when to withdraw a facility's license. But in practice, inspectors will move to do so only when they believe residents are at serious risk or conditions are not being corrected, according to records and interviews. Of the more than 800 Virginia operations licensed from 1998 to 2003, about 60 had been warned that they were on the verge of losing a license. Of those, more than half remained open at the end of last year.
"You have to look at what the risk is to residents" and whether the owner has a plan to correct it, said Douglas Moore, a veteran inspector. He described a common pattern of homes correcting problems temporarily only to have them return. "Some of them will turn it around," he said, and then, "here comes another screw-up."
DeNyce Bonaparte, licensing administrator in Richmond, said inspectors do a good job determining how serious the risk is to residents. "If it is critical, if it is life-threatening, then we are going to do everything we can to see that those individuals are removed from that situation," she said. "By the same token, we don't want to take them out of a bad situation and put them in a worse situation."
From 1997 through 1999, state officials reprimanded the Piedmont Home for Adults in Danville for a range of problems, including abuse, neglect and insufficient staff,records show. Residents at the home, a rundown, leaky building, were eating out of a nearby trash bin.
In May 1999, as resident James McKinley Jones, 67, sat on the porch smoking, his clothes caught fire, then his torso. Soon his head was in flames. The lone caretaker on duty struggled to call 911 and also extinguish the fire. Some of the 17 other residents grabbed blankets to help. But Jones, who had dementia, was fatally injured.
Inspectors determined that understaffing caused delays in getting help for Jones. The woman on duty told regulators that "10 [minutes] passed before she was able to dial 911." Citing several problems, inspectors told the owner that they would not renew his license, but they then reversed course and hammered out a consent agreement requiring two staff members on duty during the daytime.
In August 2002, Piedmont resident Joseph Cantrell, 69, suffered a stroke. Cantrell's niece, who was visiting him at the time, saw that he couldn't talk and that his face was beginning to droop. She asked the front desk to call 911. But the one employee on duty would not summon help because she "didn't feel there was any change in the resident," according to records. Cantrell later moved to a North Carolina nursing home and died last summer.
It was the third time the home violated its agreement to have more than one staff person on duty. State officials said the facility has "achieved a level of compliance" with regulations that allows it to remain open. Piedmont owner John E. Hall III declined to comment.
Even when the state says it is going to close a facility, the process can involve nine steps, including appeals.
At Homecare of Virginia in Chesapeake, residents' financial accounts were in disarray, roaches crawled the walls and staff intimidated those cared for, inspectors said. They told the owner they would not renew his license. But records show that while he appealed, the home stayed open and violated more regulations. It took nearly three years before the home was ordered closed by a judge in spring 2003.
"I'm not going to say I've never had a roach in my kitchen . . . but none of my situations was life-threatening," said William Jones, owner of the facility, which is now closed. He said he wanted to exhaust every possible appeal in his fight with the state.
Agency leaders said they are frustrated by the cumbersome process, which could be shortened only through a change in state law.
"If we don't have a quicker way to shut down facilities that need to be shut down, it makes a mockery of the whole, entire system," said Maurice Jones, who became commissioner of the Virginia Department of Social Services in October 2002.
In Virginia, inspectors can go to court to seek immediate closure only if residents are at imminent risk.
"It's a pretty high bar in court -- there are many cases that are of considerable concern but may not rise to the level of imminent risk as a court would define it," said Stevens, the licensing director.
In some cases, embattled owners under pressure from the state turn over management to people who rent or lease the property, records show.
Madison Home, where Srebnick fell from the window, was allowed to remain open because its owner, Shridhar V. Bhat, turned over management of the home to another company, records show. It became the licensee after the state told Bhat that it would not renew his license. Bhat has been a partial or full owner of five homes.
The home was sued by Srebnick's family and, in court filings, Bhat's attorney denied wrongdoing. State officials said at the time that they had received conflicting accounts about how Srebnick fell but that when they investigated, they found "there were no protective devices installed on the bedroom window in room 318." Last week, Bhat's insurance company agreed to a $450,000 payment to Srebnick and his son.
Bhat's facilities have repeatedly violated state regulations. When he turned Madison Home over to a management company, the name on the license changed but the administrator and some staff remained the same, according to records. In effect, the Madison Home has become a new operation. In terms of complying with state regulations, it has a clean slate.
Stevens defended that practice, saying it would be unfair not to license a facility just because ownership or staff remains in place. An employee involved in prior problems may have been "a victim of poor management under a previous regime," she said.
Problems rarely disappear, records show, even after owners promise to correct them or the facility changes management. Most of the 27 facilities under these arrangements have been reprimanded again for violating regulations.
Even when owners are told they must close a home, they don't necessarily disappear.
In 1999, state licensing officials cited chronic violations at the Dooley Madison Retirement Home and told psychiatrist S.K. Niazi they were not going to renew his license for the facility. Niazi leased the home to new managers, and the lease guaranteed that he would be hired as the psychiatric director of the 112-bed facility, according to state files. Niazi did not respond to repeated requests for comment.
Owners forced to give up their licenses can reapply for a new license after 12 months, although the state can make an exception.
A mother-daughter team with homes near Fincastle, in western Virginia, reapplied for a license just months after a judge ordered them out of business in 1990. The state granted new licenses, only to have the family run into trouble again in 2000.
Between the two homes, inspectors found medication errors, unexplained hospitalizations and tenant funds in disarray, according to records. Staff members waited three days to get help for a resident who could no longer walk, talk or feed herself. A resident struck a disabled stroke victim with a chair. And a staff person later was convicted of sexually abusing a disabled resident after management had discounted complaints about the employee, records show.
Faced with closure again, Carene Simpson and her daughter Linda Housman closed one home but fought in court to keep the other open.
After three years, they dropped their appeal and closed the home. Some residents were moved. But the women took advantage of regulations that allow caretakers to house up to three residents without a license. State officials said that Simpson and Housman each took three tenants to care for separately at a compound on a remote, wooded site.
"They come in here and expect us to have perfect everything," Linda Housman said in an interview in late 2002, disputing inspectors' findings. She said residents are happy and "nobody else wants them."
Staff researcher Bobbye Pratt and database editor Dan Keating contributed to this report.
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