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Assisted-living facilities lack ability to be fined



Published: Tue, December 4, 2012 @ 12:09 a.m.

An in-depth look at Ohio’s nursing homes

By CHRIS COTELESSE

TheNewsOutlet.org

NILES

The alarms meant to protect Eva Gorosics were quiet the night of April 9, when the 84-year-old Alzheimers patient walked out of Grace Woods Senior Living in Niles, into the cold, and to her death.

Grace was understaffed and undersecured that night, a state Department of Health probe would eventually find. But it couldn’t levy fines or criminally charge the limited liability company.

The wrong that could be pursued was against the only person on staff that night, who was assigned to watch 33 residents. Niles city police charged care assistant Andrea Clark, 27, with patient neglect. She faces up to 90 days in jail and fines up to $750. Grace Woods remains open and was never sanctioned. That charges could only be brought against one staffer surprised Terry Swauger, Niles city prosecutor.

“This was someone’s parent, grandparent, great-grandparent … this is a loss of a family member which could have been prevented and I was a little shocked to find out that that’s the highest level offense there is for this type of action,” he said.

If Grace Woods were a federally certified nursing home receiving Medicare dollars, funds could have been cut to act as a fine for the safety violations. However, assisted-living facilities, which are mostly privately funded, don’t face the same penalties.

“There’s really not any kind of strong enough repercussions, particularly in assisted living facilities,” said state Sen. Capri Cafaro of Liberty, D-32nd. “You either get a slap on the wrist or shut down completely.”

Cafaro hopes to introduce legislation in the next session of the Ohio General Assembly that would allow the Department of Health to fine assisted-living facilities.

If such a law were in place earlier, she said, regulators could have held Grace Woods accountable for the death of Gorosics.

Between 2:30 and 6 a.m. April 9, Gorosics walked out of her room, wearing only a nightshirt and disposable underwear. Clark was the only caregiver on duty for that shift and was in charge of all 33 residents.

At the end of a hallway, a passcode and an alarmed door guarded a physical therapy room and an exit, but Gorosics had learned that if she pushed the door for 15 seconds, it would open anyway, officials said.

This wasn’t the first time Gorosics left the building. The Gorosics family would not comment for this story.

Four months earlier, she walked through a similarly secured door on the other side of the building. That time, Clark heard an alarm and led her back into the facility.

But the alarm system Gorosics breached the morning she died was found by Department of Health investigator Walt Bradley to have a “mechanical deficiency.”

According to his final report on the incident, a motion sensor in the therapy room was set to turn off the alarm when approached from that side.

It allowed staff to enter that wing of the building through the therapy room without having to punch in the passcode.

The device was 12 inches too close to the entryway. So after Gorosics pushed for 15 seconds, the door swung into the room and across the sensor, killing the alarm until it was reset hours later.

Clark was supposed to check on Gorosics and three other residents every half-hour because they were considered “at risk for elopement,” according to Bradley’s report. All had either attempted or succeeded in leaving the facility. Just a week earlier, a woman had climbed out of her bedroom window. The staff was not aware she was missing until she was returned unharmed by police.

Clark told police that she didn’t realize Gorosics was missing until 6 a.m., although she had already logged that Gorosics was in her room from 2 to 7 a.m. in the visual check log.

Also, Clark told police she had last seen Gorosics at 4 a.m., however, she told Bradley it was at 2:30 a.m.

Clark told Bradley she was cleaning, doing laundry and waking up other residents while Gorosics went unsupervised.

“She stated she always worked the third shift by herself and the last five months have been busier,” according to Bradley’s report. “She told the administrator that there were too many people to watch and do the work.”

It’s unknown at what time Gorosics disabled the alarm and walked through the secure areas of the facility into the frigid air of early spring.

Two staff members discovered Gorosics’ body about 6:45 a.m.

Bradley wrote in his report that the faulty alarm system and inadequate staffing created a “real and present danger” that jeopardized the residents’ lives.

The Ohio Department of Health could have closed the facility and relocated its residents. However, Bradley chose a more common option. He requested a plan of correction and scheduled a follow-up visit for a month later. A facility has 23 days to comply or face revocation of its license.

Out of 12 “real and present danger” incidents since 2008, the department proposed seven license revocations, only two of which were actually revoked. One of these was the House of Hope in Youngstown, which was closed in September 2011. That closing came upon public outcry and media scrutiny after a resident was found dead in November 2010 in one of the home’s bathrooms. Despite attempts by the state to close the facility in early 2009, the home remained open.

“It’s not something we do every day,” said Tess “Tessie” Pollock, a representative for the state Department of Health. “The main goal is to bring a facility into compliance.”

Pollock said the department doesn’t generally shut down a facility unless there is a “pattern of serious violations.”

Inspection reports dating to 2009 reveal that Grace Woods had been cited for 13 violations related to patient safety, including inadequate staff, untrained staff, unsecured entrances and allowing unlicensed individuals to administer medications.

In July 2011, personnel failed to notify the staff physician that a resident became lethargic and disoriented. During that time, the patient fell and fractured her hip. She wasn’t taken to the emergency room for two days.

Edward Fabian, owner and administrator of Grace Woods, declined to comment.

Like all prior violations, Fabian complied with safety regulations in a timely manner.

The night after Gorosics died, Fabian scheduled an extra residential-care assistant to the overnight shift. The following day, he installed a new alarm system.

By April 13, when Bradley filed citations against Grace Woods, “real and present danger was abated,” and the facility was already in the clear.

John Saulitis, regional director of the Long-term Care Ombudsman Program for the Department of Aging, said the state has limited power to enforce regulations for assisted-living facilities.

“There’s not a lot. I mean they’re not anywhere near compared to nursing home regulations. Partly that is because of the presumption of independence,” he said.

Assisted-living facilities vary in the services they provide to their patients. Some serve people who need relatively little assistance. Others so closely resemble nursing homes that — in terms of the functions they serve — the difference amounts to little more than a framed certification from the Ohio Department of Health’s Bureau of Long-term Care.

That piece of paper can mean a lot regarding the consequences of a code violation.

Assisted-living facilities and nursing homes are both licensed by the bureau. But nursing homes get certified, giving them access to Medicare dollars.

Most assisted-living facilities in Ohio are private pay and, unlike Medicare, which can withhold funding to encourage higher quality, the Department of Health can only revoke a facility’s license.

Saulitis said that without monetary penalties, correction becomes reactive. Violations affect the bottom line for federally funded nursing homes, but not so for assisted-living facilities.

“In the assisted-living world, there is either no penalty, or the death penalty,” Saulitis said.

Saulitis is working with Cafaro and the Ohio Department of Aging on research for a law that would allow the Department of Health to fine assisted- living facilities.

“Fines or monetary penalties are oftentimes used as penalties for violations of laws and rules,” Saulitis said. “If there were no financial penalties, I’d drive 85 mph everyday on every street.”

Cafaro plans to introduce a bill toward the beginning of the Ohio General Assembly’s next session. She can’t help Gorosics, but Cafaro said she hopes more oversight will prevent other needless deaths.

“Anytime you’re dealing with a vulnerable population, it’s important to make sure everyone is appropriately monitored,” Cafaro said.

Rose Bonilla contributed to this story.

TheNewsOutlet.org is a collaborative effort among the Youngstown State University journalism program, Kent State University, University of Akron and professional media outlets including, WYSU-FM Radio and The Vindicator, The Beacon Journal and Rubber City Radio, both of Akron.


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