NATIONAL COALITION FOR NURSING HOME REFORM
SPEECH OF ATTORNEY GENERAL JANET RENO Omni Shoreham Hotel Palladian Room 2500 Calvert Street, N.W. Washington, D.C. 20008 S P E E C H 3:40 p.m. to 4:24 p.m.
MS. : --to nursing home quality of care issues. This issue and initiative would not have been possible without the person we honor this afternoon, the Attorney General of the United States, Janet Reno. We need a very strong Federal--
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ATTORNEY GENERAL RENO: --me to go to work for her, and she needed a swing person for the summer vacation. Well, I went to work for her. I didn't think she was very special the first day, but the second day--
ATTORNEY GENERAL RENO: I saw [inaudible] this lady, who was responsible for all of the indigent county patients of the Psychiatric Institute, those that were suffering from DTs, those who were developmentally disabled in private homes, and for many at the county nursing home. I learned so much that summer. And all I can tell you is, you who are at this year in and year out, [inaudible]. [Inaudible.] We can make a difference [inaudible] in nursing homes.
We are on the cusp of a profound demographic change with the advancements in medicine, the Baby Boomers aging, our older population is skyrocketing. Today, about 34 million Americans are over 65. In 30 years, that number will more than double, and with this, the number of nursing home residents will double or triple.
It is almost impossible to overstate the impact of this demographic trend on every aspect of our society. A recent study found that more than 50 percent of the nation's nursing homes are understaffed now. Other recent reports found that, despite some improvements, we have seriously deficient care at many of our nursing homes. Translated into daily human reality, the numbers in these reports mean this: Too many residents suffer unnecessarily--
ATTORNEY GENERAL RENO: --from pressure sores, from malnutrition, from dehydration, from restraints, from falls. These residents cannot react. They simply cannot get up and move to another facility. They oftentimes cannot give voice to their pain and suffering or to their wishes. And even if they can, too often they fear retaliation. In fact, many people are so terrified that they would stay in a setting where they are abused and neglected now rather than go to a nursing home.
And yet, in that summer of 1957, I saw people with a lot less knowledge than we have now take beautiful care of people because they weren't as interested in the dollar as they were in making a basic living and doing right by the people they cared for.
ATTORNEY GENERAL RENO: The cost of elder abuse and neglect is high. It is, as we have noted, paid for in human suffering and higher health care costs and in depleted public resources that could be used for great, good things which were to improve the efforts.
If we can unlock the mysteries of science to live longer, if we can send people to the moon, if we can do so much that we have done with technology in these last 50 years, what have we gained if we fail to assure that those whose lives have been lengthened can live in dignity and without pain?
ATTORNEY GENERAL RENO: We must all take up the challenge of working for a society where we can age safely, without fear of abuse, neglect or exploitation. It is for this reason that we launched our nursing home initiative and began focusing on what I called elder justice.
To ensure justice for our elders, law enforcement professionals must be more responsive to the needs of older Americans at each stage of the process, each stage, beginning with the prevention of elder mistreatment, intervening at the very first sign of it, and where necessary, prosecuting wrongdoers aggressively.
ATTORNEY GENERAL RENO: And with sensitivity to what type of remedy best fits the circumstances.
Now, I like the name "elders." I don't know why. But I think of my Native American friends and the way they refer with such reverence and such respect to their elders. Of course, my mother, may she rest in peace, had over her table where she liked to work: "Old age and treachery will overcome youth and skill."
ATTORNEY GENERAL RENO: And she knew exactly what she was doing, but she had a good time.
Preventing abuse and neglect is our first aim. Now, there are some people that say, "Don't talk to me about prevention. I want you to prosecute those people." I haven't met anybody who would rather see the stuff happen than prevent it in the first place.
ATTORNEY GENERAL RENO: But we've got to start prevention in very much the same way as I'm talking about the prevention of child abuse and mistreatment. I used to think, with child abuse, let's start in the juvenile justice system, and we can do something about it there and prevent them from getting into trouble. Well, I was dealing with 17-year-olds. It took the crack epidemic to make me realize that we had to go back to zero to three, to the foundation of living, to make sure that we made a difference in prevention.
We have got to change this nation's attitude, culture and economic approach to this issue by creating service organizations that can deliver services in a reasonable manner, with economic benefit to the people providing the service, but recognize that if we use our smarts, we can let people live a lot longer in their own homes under much better conditions.
ATTORNEY GENERAL RENO: We must focus on prevention by increasing awareness of the problems and potential solutions and by creating infrastructure to facilitate coordination at the federal, state and local levels.
Specifically, we provided training to more than 1,000 federal, state and local law enforcement regulators, resident advocates, health care, social service and emergency responders. And we established multiple disciplinary interagency state working groups at the state and local levels that are now pursuing a myriad of exciting projects. These groups were created to bolster efforts to prevent mistreatment, train first responders in law enforcement, increase coordination among those with responsibility in this area and step up enforcement to deter and punish wrongdoing.
We are continuing to work with and learn much from our colleagues at the Department of Health and Human Services, the state surveyors and others in state and local government, as well as advocates, academics, health care providers and others.
Now, the importance of prevention I think is made clear by the fact that incidents of mistreatment that many would perceive as minor can have a terribly debilitating effect on an elder person and are especially devastating for low-income victims. Indeed, a single episode of victimization can tip over an otherwise productive, self-sufficient older person's life. Because older victims usually have fewer support systems and reserves--physical, psychological and economic--the impact of abuse and neglect is magnified and significantly reduces the life expectancy of those involved.
To deal with these problems, we should all be looking at practices that have worked in various parts of the country or around the world. We must take these positive examples of how to grow older safely and how to formulate effective institutional responses and implement them in all of our communities.
As a state attorney in my 15 years, I found that people would throw up their hands and say, "It's not possible. It costs money. We don't have any money." I learned that if you dig hard enough, sometimes it's not the money, it's the way you do things, and it's the way you approach it. And what gave people the best encouragement was not my saying, "Yes, you can do it, you can do it, you can do it," it was, "Hey, look at them. They did it, and they did it over a long period of time, and they've got a track record. Why don't you talk to them and find out how they did it?"
ATTORNEY GENERAL RENO: And then I'd hear about it in a couple of weeks. And they might not have learned the best management because something like this requires a team sense and an attention to detail, and it requires getting the best of the people that you could employ and getting the best people you can employ means giving them responsibility, giving them the training that they need to do the job, finding out the latest medical information that can best assist in these areas.
Today, the Department of Justice, in conjunction with the Department of Health and Human Services, convened a national symposium showcasing promising prevention, intervention and prosecution practices in three primary areas: Elder mistreatment in institutions, elder mistreatment at home and financial fraud.
Tomorrow, I will hear from state and tribal teams about the multidisciplinary approaches they plan to take back home to promote safe and healthy aging and to prevent victimization of older people, and something more than safe and healthy aging--safe, healthy, productive and fun aging.
ATTORNEY GENERAL RENO: Some of you have heard this, but I've got to tell you. My mother was very frail and fragile, and she died just before I came to Washington. But about two years before, when I knew she was dying, I said, "Now, you like to go, don't you?"
"Yes, but I think I've had it. I can't get around that much."
I said, "Just watch." Well, we went to Costa Rica, to the rain forest where she'd always wanted to go; we went across Canada in a train and stayed in the Rockies; we took a cruise and ended up in a square in Caracas just before the hoses came in to disperse a crowd which had gathered. She loved that.
ATTORNEY GENERAL RENO: I took her up the St. John's River in a houseboat, and I took her to Maine to see her brother, and she had fun. I thought it was going to be intimidating. It's one of the best experiences that I have had. And if you approach it that way, whether you're running a nursing home or taking care of your mother at home, it can make a difference.
ATTORNEY GENERAL RENO: But I do not minimize how difficult it is to run a nursing home properly. There are some top-flight providers. And I think we can find examples of best practices and distribute them throughout the nation.
I also recognize that this is a difficult time for nursing homes. Five of the country's seven largest chains are in bankruptcy working to reorganize and others are in financial distress. But the entire industry is given a black eye for the misconduct of a few, whether it be abuse by individuals or decisions from corporate board rooms that preclude well-meaning staff from rendering adequate care at the bedside.
It is, thus, critical that nursing homes, which have front-line responsibility for providing quality care, develop and implement the promising practices that I have mentioned. I urge providers to implement preventative measures, hire adequate staff, provide adequate training, especially to direct-care providers, request criminal background checks on applicants, as authorized under current law, and avail themselves of the voluntary compliance guidance on quality care and financial integrity that was recently issued by the HSS Office of Inspector General.
But prevention is not enough. We must implement effective interventions when problems arise. We see the importance of prompt intervention in our best nursing homes. For example, one nursing home medical director who works as part of the multidisciplinary team put it succinctly when she said, "The nurses in my facility become alarmed when more than three of our 125 residents have pressure sores, for they know I'll turn the place upside down until I find out what's going on so that we can catch any problems early."
This type of leadership and responsiveness from health care providers is critical. We must be vigilant, we must move quickly, and we must move thoroughly. If we do that, we can make a difference.
ATTORNEY GENERAL RENO: We need the types of collaborative approaches being used at some medical schools for geriatric teams or working with Adult Protective Services and others to provide clinical care, multidisciplinary training, evaluation, interventions and, where appropriate, referrals to law enforcement.
I think we can engage community police officers, both in the home setting and the nursing home setting, to stop--
ATTORNEY GENERAL RENO: If we train our police officers to look for trouble signs, we can find out what's going on early. The Corporation for National Service runs programs such as the Senior Companion program, through which older volunteers assist frail and disabled adults who need extra help to live independently.
And the Corporation's Retired and Senior Volunteer Program, RSVP, offers a myriad of volunteer opportunities, including more than 7,000 nursing homes--in more than 7,000 nursing homes and other residential care facilities. Other RSVP volunteers are trained to recognize and facilitate interventions when elder abuse appears to be occurring.
My mother said she used treachery against us, but I think she used wisdom. And there is tremendous wisdom, and in their own excitement, energy in our elders. I urge the active healthy elders to make a difference because I have seen what they can do in financial fraud cases. I have seen what they can do as advocates. I have seen what they can do when they teach their then 54-year-old niece how to use the Internet.
ATTORNEY GENERAL RENO: When prevention and intervention fail, prosecution comes into play. Therefore, another primary objective of our nursing home initiative was to create infrastructure and provide training that would bridge the historical gap between those on the front lines who see problems firsthand and those charged with enforcing the law.
Enforcement of the law is a crucial backstop, making your efforts on the front line more effective. If unscrupulous nursing homes know they will be prosecuted for lying to surveyors, falsifying records or failing to report abuse and neglect as required, if they know they will be prosecuted for mistreating those entrusted in their care, if they know that the ombudsman, the fire fighter and the emergency room nurse will pick up the phone when they see problems, then the very presence of law enforcement can have a strong preventative impact.
ATTORNEY GENERAL RENO: It is vital that we not shy away from pursuing these difficult cases, but find the most effective ways to use resident level, as well as systemic data. But I'm not minimizing. I've prosecuted, and my prosecutors have prosecuted cases like that in the state court system. And I'm not one of those that thinks that the Feds can do it any better than the states can because it's just plain difficult.
When you prosecute somebody, you've got to have a reasonable opportunity of proving the case beyond and to the exclusion of a reasonable doubt. You've got to make sure that you don't pursue it against innocent people. You've got terribly difficult situations when you get three or four different versions of what happened. But you still do it when the evidence justifies opening an investigation. And we are strongly committed to pursuing cases, under the Civil False Claims Act and the Civil Rights of Institutionalized Persons Act, where failures of basic care lead to profound malnutrition, pressure ulcers and other harm.
Similarly, on the criminal side, we recently have brought successful false statement, financial fraud and public corruption prosecutions in the nursing home arena. These nursing home cases raise novel and complex issues, particularly where there is financial distress with the potential for nursing home closures. We will continue coordinating closely with the Department of Health and Human Services and others to fashion remedies that balance enforcement goals, recouping lost funds and punishing and deterring wrongdoing, with the public health goals of protecting today's and tomorrow's nursing home residents.
This administration proposed legislation that would address gaps in current law by creating federal, criminal, civil and injunctive remedies for patterns of abuse or other illegal conduct causing harm to residents. We urge the next Congress to enact such legislation.
We are also tackling this issue from another angle. One of the big problems is finding pathologists who are willing to work with us in testifying, although the victim can't testify, that this was a product of abuse rather than a fall or something like that. It is very difficult when your victim is silent or cannot express just what's happening. It is very difficult when your forensic pathologist or other expert doesn't like to go to court to testify. You can't blame them. But trying to find forensic experts in this area has been one of our challenges.
Dr. Karl Eisdorfer of the University of Miami Medical School was the person who first called my attention to the need to address the issue of medical forensic services in elder abuse cases. The real breakthrough in my ability came when I was finally able to put a physician on the stand who could testify, "This broken arm is not consistent with a fall out of bed." Those types of experts are equally critical in all of these cases.
Thus, earlier this month, we asked leading experts in the relevant fields to join us in a discussion of medical forensic issues relating to elder abuse and neglect. These experts were of the view that there is significant room for improvement and their recommendations included the following:
First, we need rigorous academic research on elder abuse and neglect to define its nature, scope, causes, consequences and to establish what medical science require additional inquiry or reporting. And we must include an evaluation component in our programs and efforts to measure their effectiveness. In this way, we will create a body of literature that will inform and support our efforts. The research in this area will be complex and expensive, but it is vital.
Secondly, those on the front lines must be trained to detect, diagnose, document and, where appropriate, report suspected elder abuse and neglect.
Third, we must increase the medical forensic expertise relating to elder abuse and neglect.
And, four, police, investigators, lawyers and judges should be trained about elder abuse and neglect in communities and nursing home settings and about the full range of potential remedies that can be brought to bear in any given case.
Now, despite the challenges, there are fair grounds for considerable optimism. Now, somebody today said, What makes you an optimist? My mother said I was an optimist, and there are times when I fail, so I sometimes wonder.
But unless you believe that you can make a difference, the difference is not going to be made. And if you believe and carry forward with it, you can succeed. Don't give up. Don't get pessimistic. Don't stop trying.
For example, last week, the multidisciplinary team that responds to elder abuse and neglect cases began developing a proposal to measure the outcome of its multidisciplinary response to elder mistreatment as compared to less-coordinated approaches. They are trying. If we work together, if we do outreach, if we work with community police officers, if we get the signs early, we can make a difference. Hospitals working to develop a regional forensic center that would provide expert medical opinions in cases of suspected abuse and neglect, similar to a forensic child abuse center, is developing.
And still another suggestion, until there is more widespread expertise, is to create a national forensic center that would be accessible in person, by telecommunication consultation or by e-mail. These are promising developments, but we must do more--much more.
The importance of defending the universal human right to live free of suffering caused by abuse and neglect does not diminish with age. We must be watchful. The insidious presumption that I too often have heard that old people will die soon anyway does not beget inaction or excuse ignorance, otherwise older victims suffer twice--once from the abuse and neglect itself and the second time from the inadequate or nonexistent response to their suffering due to a lack of detection, treatment, intervention and prosecution.
Given the chasm between what is and what should be, our mandate is clear. We must develop and implement a comprehensive, coordinated, well-funded national plan to combat elder abuse and neglect, but we need not reinvent the wheel. There is much to learn from our successful approaches in fighting against child abuse and domestic violence.
In 1978, I developed a domestic intervention program. I tried to get the state to take it over. "That's not our problem." I tried to get police interested in it. "It's just a domestic." Times have changed, ladies and gentlemen. People are taking domestic violence seriously.
ATTORNEY GENERAL RENO: I thank you for honoring me and for giving me this opportunity to lay out what I think we can do. It is said that a society's humanity can be measured by how it treats its most vulnerable members. By that measure, we have a long way to go.
I commit to you that I will work as hard as I can in these three months that I have remaining before I go home and decide what I'm going to do when I grow up--
ATTORNEY GENERAL RENO: --get everything settled, and then get in my truck and explore the country. But after I get through that trip, I am going to be ready for action.
ATTORNEY GENERAL RENO: There is too much to do in this world to help others. One of the things that I urge you to do is to reach out to young people. The young people of America want so to make a difference. They want so to be involved, to show that by their hand and by their action they have made life better for other people. That includes the young minority lad who seems angry and rebellious. All he wants to do is to be heard, and for people to accept him, and to understand him and to let him give what he can to those he cares about.
ATTORNEY GENERAL RENO: You will find that young people of America are remarkable and wonderful allies in your great and wonderful undertaking. You are but little lower than the angels.
MS. : The attorney general has very graciously agreed to spend a few minutes answering comments or questions. So I will entertain those questions.
ATTORNEY GENERAL RENO: I have one question of you.
ATTORNEY GENERAL RENO: If you were the attorney general of the United States, what would you do to address this issue?
MS. : We have a question back there, the individual that was standing up. I'm going to ask that you keep your comments and questions to no more than about 30 seconds so we can have the attorney general answer them.
QUESTION: [Off mike.] When will the language of elder care include not only nursing homes, but assisted living and responsively saying [inaudible]?
ATTORNEY GENERAL RENO: Oh, I think it should include more than assisted living. I think it should include everything in terms of elder care and elder justice. But I came here to speak about nursing homes today.
QUESTION: [Off mike.] Thank you. If I were the attorney--if I were in your place, I would mandate a federal law passed that would allow the federal enforcement agencies to address the elderly abuse, which at this time they can't. There's no legal--after [inaudible] with the False Claims Act, which is very difficult sometimes because the False Claims Act [inaudible] they would have certain recoveries. And it's very cumbersome for the federal enforcement agencies to address the [inaudible].
And the problem is with the states. The state politics are so severe and the contributions to the legislators at the local level, that our states attorneys just sit on these cases--
ATTORNEY GENERAL RENO: You just hit a raw nerve.
ATTORNEY GENERAL RENO: This is one state attorney that didn't sit on the cases.
QUESTION: [Off mike.] [Inaudible.] --problem with the [inaudible] states, also. But even though sometimes we are able to get local police to investigate the cases, the states attorneys are very reluctant to carry on with them. And perhaps this is [inaudible]--
ATTORNEY GENERAL RENO: Well, I think the reason, if you have a specific case in mind, I'd be happy to look at it and see what, if anything, we could do. But you've got to be very careful when you talk about a reluctance to carry on. Before a prosecutor can ethically bring a charge--they can't bring a charge just because they think they might win it--they've got to have probable cause to believe a crime was committed, the ability to prove that case beyond and to the exclusion of a reasonable doubt.
What I think is important, in this instance, is that we give them the tools to do the job. And the police officer who is used to investigating street crime may not have the smarts, with respect to nursing home issues, that he has with respect to street crime issues. We need the forensic expert. We need the tools. And I think that's what we must concentrate on to ensure that we develop the capacity to prosecute whenever it's humanly possible to.
QUESTION: [Off mike.] We just had a case involving a nursing home--criminal charges against the administrator of a home and against the--for the treatment of--well, and also involving the supervisor of nurses. And this was due to a man taking videotapes of his father's neglect in a nursing home. And it said in this article in the Hartford Courant that the [inaudible] establish the chief state attorney's office that is being funded with a $200,000 federal grant. Is this familiar to you? Was this available to other states, this federal grant?
ATTORNEY GENERAL RENO: I'm not sure what federal grant is involved, but states have a number of different federal grants from the Justice Department that could very conceivably apply in elder abuse issues through the Bureau of Justice assistance and through BURN [ph] grant efforts. But I'll check on that. It was in the June 2nd Hartford Courant?
QUESTION: [Off mike.] Yes, I can give it to you.
ATTORNEY GENERAL RENO: Thank you.
You and then you.
QUESTION: [Off mike.] [Inaudible.]
ATTORNEY GENERAL RENO: Okay. Thank you, ma'am.
QUESTION: [Off mike.] I'd like to encourage you to develop some statutes that provide criminal charges for those who own and operate nursing home companies and profit off of the continuing neglect, and abuse and short staffing, so that--
QUESTION: [Off mike.] Because in the same way had committees [inaudible], these are people who are in situations, where time and again in the same home and the same company, serious jeopardy has been found in the homes, et cetera, et cetera. What happens to the owner of the home, there's really never any consequences except, you know, some kind of a minor fine. There should really be criminal charges. These are people who are being abused.
QUESTION: [Off mike.] My name is Loreen Siegel [ph]. I'm with [inaudible] in Chicago, Illinois. And, Attorney General, I am truly honored to be here in your presence today. And all I'd like to ask, on behalf of the staff that came with me from Chicago, is a photo of you for our [inaudible].
QUESTION: [Inaudible.] There is more than that, though.
Actually, I think that all of us being here right now is like really making [inaudible] to the changes that have happened, the positive way we're looking at things, the things we're doing to change things, and just us being here there's like a really positive feeling.
QUESTION: [Off mike.] I am so excited and thrilled that you are going to help us [inaudible]. We are approaching this in the State of Texas [inaudible]. We have been pushing this without--
ATTORNEY GENERAL RENO: Now, what are you specifically referring to?
QUESTION: [Off mike.] Oh, I'm sorry. We are pushing for what are called criminal history ID cards that you could use to pass through a computer, have their thumbprint and their name. And it would be used not only [inaudible]. It would go straight to the FBI [inaudible] criminals. Just two weeks ago, we had a case of a little girl being molested and raped. She was 11 years old. [Inaudible].
So we would like to have these ID cards not only for nursing home staff, but for every health care worker who has access to frail, vulnerable people, but you know even children, whatever.
ATTORNEY GENERAL RENO: Thank you. That is--
QUESTION: Thank you.
ATTORNEY GENERAL RENO: Thank you very much.
You, and then you, and then you, and then I've got to go.
QUESTION: [Off mike.] I'd like for you to address the fact that sometimes in abuse and neglect cases that, because of the legal process, that the ownership of the facilities where abuse and neglect occurs, many times the witnesses don't make it until the final appeals process [inaudible]--you know, go, and go and go, and go and go, and they don't last that long.
Do you think there's any way that advocates could help to speed up that process so that the bad players will be prosecuted and brought forward?
ATTORNEY GENERAL RENO: I think it depends on the specific case. But in many states you can perpetuate testimony where there is a possibility that the witness may not survive. We will follow through on that and see just what the situation is in a number of states.
QUESTION: [Off mike.] Attorney General Reno. I'm Loraine [inaudible] for 20 years.
If I was in your place, I would certainly try to figure out a way that I can bring four groups of people to Washington in a two-day session every year: an advocate, the resident, the nursing [inaudible] and concerned providers. [Inaudible] the concern off and [inaudible].
ATTORNEY GENERAL RENO: Who's going to be left minding the house?
QUESTION: [Off mike.] We'd like to have someone [inaudible], the student nursing assistant, along with the nursing home staff to [inaudible].
QUESTION: [Off mike.] I'm asking this question for my 85-year-old mother who is home in Pompey, Florida. Our attorney general refused to prosecute a case in regard [inaudible]. The Medicare Fraud Unit filed charges, and they did not take the time to deposition, and the witness died. They said that they could not, at that point, bring it.
What I want to know is what can we do to make these people realize that we need to prosecute? We're not going to get anywhere without prosecutions? The attorney general's, Wayne Holmes in the attorney general's office down there made the statement to me, "If I took this case and prosecuted, the taxpayers would say to me how dare I spend their money trying to prosecute this case."
And I said to him, "How dare you not do it?" He did not do it.
ATTORNEY GENERAL RENO: I can't comment on a specific case. But I can tell you that, and as attorney general I can't know all the cases that are involved, but I will tell you this, and I urge you to consider it.
When you see somebody suffer needlessly, when you see circumstances that just break your heart, when one human being does something to another or you think they do, you say, "You've got to prosecute," but you cannot prosecute in our system of justice until you can prove the case beyond and to the exclusion of a reasonable doubt. And there is a very difficult line to walk. Don't lessen your advocacy at all. Keep asking the question.
QUESTION: [Off mike.] But the seniors will--I'm sorry--but with the seniors, it's like a baby because I've been guardian ad litem for the children. What can we do to prosecute? I mean--
ATTORNEY GENERAL RENO: What precisely I urged earlier. We need to encourage medical schools to produce experts on forensic issues, we need to prepare investigators who are skilled in doing the physical investigation necessary, we need good financial fraud investigators who understand what's involved. We need the tools, and we need to make sure that people get the training.
But we--I have seen people prosecuted who were innocent, not in these cases, but in others. There is nothing so horrible as to see someone prosecuted for a crime they did not commit. So the function of a prosecutor is a very difficult one. Be a little bit gentle when you talk to them because I've been on [inaudible]--
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