Alice’s family thought they had done everything right. They selected an assisted living facility, in Sun Prairie, Wis., because it was locked and had alarms, and one of the symptoms of Alice’s dementia was that she tended to wander. They visited Alice regularly and at variable days and times each week. Her four children made sure the staff knew that Alice was a wanderer, and then relied on the promise that she would be supervised at all times so she couldn’t possibly leave the facility on her own.

Alice, an 84-year old woman, moved into Faith Gardens in October 2017 and died on Dec. 28, 2017. She froze to death just a few yards from the facility’s front door. The exact time of death is unknown because the last time a staff member saw Alice was at 2 a.m. She wasn’t discovered until 7 a.m. when the next shift started and a staff member realized Alice was not in the facility.¹

“The owners of Faith Gardens ultimately accepted responsibility for her death and acknowledged that staff negligence was the cause,” according to Mathew Boller, the lawyer who represented Alice’s family members.² The facility was cited with four violations by the Division of Quality Assurance (DQA) and sanctioned with a small fine ($4,200) and not allowed to admit new residents. The owners voluntarily closed the facility.

“Alice’s death was completely preventable if the facility had just provided basic supervision and kept the front entrance locked and alarmed,” Boller explained. “Instead, the exit door was propped open with a can and the alarm was not turned on the night she wandered out into the cold. The temperatures that night dropped below zero. I learned, as a result of depositions of staff, that the alarm was purchased at a Dollar Store and was frequently turned off or simply not functioning. Staff said that they either didn’t know how to operate the alarm or didn’t like to hear the buzzer going off.”

I became aware of this case because my mother also resided at Faith Gardens during the months before Alice’s death. My mother was a resident from March 2016 to March 2018. She told me that “the lady next door” used to wander into her room, and she had to yell to get the attention of staff members to have her redirected. My mother’s room was next to Alice’s room.

A few months after Alice’s death, my mother required a level of skilled care that could only be provided in a skilled nursing facility so she moved to a facility in Fitchburg. Before my mother’s move, I had noticed that Faith Gardens was frequently understaffed and that one certified nursing assistant (CNA), on multiple occasions, brought her 10-year-old daughter to stay at the facility during her entire shift. Another staff member told me that the CNA had to bring her daughter with her because she could not afford child care.

Signs a Facility Might Be at Risk to Provide Inadequate Care

High staff turnover was very evident at Faith Gardens, especially during the last year of my mother’s stay. Because my mother had severe short-term memory loss, we could not rely on her to tell us if something was wrong. My siblings and I did our best to visit her often and varied the times of the visits so we could observe her care during different shifts. We did our best to get to know the staff. We also hired a part-time aide to provide some social activities because there were days or even weeks when there were no activities, other than watching the big-screen TV in the common area. At the beginning of my mother’s stay, the facility employed a very talented and caring activity director. However, after she was severely injured in a car accident, the facility did not hire a new activity director and simply assigned her duties to remaining, already overworked, staff members.

Kim Marheine, the supervisor of Wisconsin’s Ombudsman Program, explained that, “They [Faith Gardens] were on our radar. They had been cited for medication errors and failure to run background checks on staff who were later revealed to have criminal records that, if known, could have prevented them from being hired.” Boller eventually represented seven residents of the facility, in addition to Alice’s family, with numerous negligence complaints. He said that “they were understaffed and the staff were underpaid and poorly trained.”

Although death of a resident as a result of negligence may be reported by media outlets and receive some brief attention, other types of abuse of the elderly in all types of facilities are much more common, receive little or no media attention, and are increasing in frequency. The statistics regarding elder abuse are troubling because, even with enforcement of regulations, mandatory reporting requirements, and penalties being imposed, the frequency of abuse is not declining. In particular, “the frequency of sexual abuse is increasing,” according to Kim Marheine.³

Abuse is defined in Wis. Stat. section 46.90(1)(a):

“An employee of any entity that is licensed, certified, or approved by or registered with the department shall file reports if the elder adult at risk has requested the person to make the report or, if the person has reasonable cause to believe that any of the following situations exist: 1. The elder adult at risk is at imminent risk of serious bodily harm, death, sexual assault, or significant property loss and is unable to make an informed judgment about whether to report the risk. 2. An elder adult at risk other than the subject of the report is at risk of serious bodily harm, death, sexual assault, or significant property loss inflicted by a suspected perpetrator.”

An elder adult at risk is defined as “any person age 60 or older who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”⁴ It is important to know that “any person making a report under this subsection is presumed to have reported in good faith.”

It is possible to be harmed financially by the staff of a facility, even when the staff is being “helpful.” In a case filed in Polk County, attorney Peter Grosskopf represented the surviving daughter of a resident of Willowridge Health Care Facility LLC.⁵ Grosskopf explained that when the client’s mother entered the nursing home, the client signed the admission agreement as her mother’s health care agent. Her mother had only $10,000 in a savings account but the daughter did not have access to the funds because she was not the financial agent. The mother eventually agreed to release the funds to cover the facility’s bills.

Unfortunately, a staff member of the facility who started to “help” with the Medicaid application process left the facility before completing the application process when the mother’s assets were below $2,000, and no one completed the work or notified her daughter that the application was not finalized. The daughter thought that everything was fine until after her mother died and she was notified that the nursing home was suing her for the $26,000 balance owed. She was shocked to learn that her mother was not enrolled in Medicaid, even though she qualified.

The facility argued that the daughter, as a health care agent, failed in her duties to gather her mother’s assets and pay her bills so she should be held personally liable for her mother’s bills. The facility is hoping that the court will find that even a health care agent is personally responsible for a resident’s bills. Grosskopf argued that a “health care agent” does not have the authority to sign a financial contract on behalf of the principal.

Grosskopf advises lawyers to warn clients to not accept “free” help from the nursing home staff to complete the Medicaid paperwork. He also advises anyone acting as someone’s financial agent to sign an admission agreement as the person’s “representative,” not as the person’s “agent.” Although both of these terms are used to identify a person who is acting on someone’s behalf, Grosskopf’s case highlights how the term “agent” may be used to argue that the person is personally financially liable for someone’s bills.

What Are the Regulations and Who Are the Regulators?

Lawyers and clients should not rely solely on the regulators to identify when abuse has occurred, take action to make sure the abuser(s) are sanctioned, or take the proper steps to prevent abuse in the future. Yes, facilities are regulated and required to maintain certification or a license. However, the standards set forth in the regulations⁶ are intended to be minimum standards. In addition, do not assume that all abuse is being reported.

There are many reasons abuse is not reported, even though providers and their staff are mandatory reporters.⁷ The abuse might happen without a witness. If the abuse is witnessed, the person who sees the abuse might be afraid to report the abuse because of possible retaliation by the abuser or their employer. Ideally, the reporter should be able to report the abuse without fear of retaliation, and there are laws that are intended to protect the reporter.⁸ But as a practical matter, a reporter who is fired, especially if the reporter is a CNA, needs to find another job quickly and would not typically have the funds to retain an attorney.

A case that illustrates the problems with reporting abuse or retaliation is Schultz v. Community Living Arrangements.⁹ This case involved a CNA who was fired just a few days after reporting neglect of a resident to the ombudsman. The Equal Rights Division administrative law judge (ALJ) who initially heard the case, James A. Schacht, said that retaliation cases are quite complex and getting to the truth is extremely difficult. The person who reported the abuse might have included only a few details in the report. The supervisor who fired the reporter might claim that the reporter’s employment was terminated for other reasons that sound plausible. The records and the parties’ memories involved may be inconsistent and simply lack enough information to corroborate anyone’s version of the events.

Assuming that a complete report is made to the proper agency,¹⁰ the agency now must determine whether the report should be handled by a different agency. For example, if a complaint is made to the Board on Aging and Long Term Care’s Ombudsman Program, the ombudsman may attempt to resolve the problem by meeting with the complainant and facility staff. If taking these steps is not appropriate, due to the urgency of the problem or the severity of the abuse allegation, the ombudsman would refer the matter to the DQA, the local adult protective services (APS) agency, or a law enforcement agency, according to Marheine.

The Ombudsman Program is not involved in sanctioning facilities or caregivers. The Ombudsman Program is Wisconsin’s version of a federally mandated program that provides trained, professional advocates who represent the interests of and speak for residents of long-term care facilities. Ombudsmen respond to complaints lodged by or on behalf of these residents and advocate to protect their rights and welfare when threatened by actions of care providers, by a governmental entity, or any other person. Ombudsmen also serve as consultants and educators to providers and citizens on any number of specific issues, including resident rights, facility culture change, and Wisconsin’s Family Care managed long-term care and Include, Respect, I Self-Direct (IRIS) programs.¹¹

If the complaint is forwarded to the DQA and is considered minor, DQA staff may decide to follow up during the next survey of the facility and not do any further investigation, according to Robert Lightfoot, a lawyer who represents owners of facilities.¹² If the complaint involves a serious threat to a person’s safety, an investigation will be done immediately by the DQA or a referral can be made to the APS and law enforcement agencies. Doreen Goetsch, CSW (licensed Certified Social Worker), an APS coordinator, said that the local APS staff will do an initial investigation but may quickly team up with law enforcement to be sure evidence is collected, if criminal charges are likely.

Nursing homes are regulated by the federal government, the Centers for Medicare and Medicaid Services (CMS), and the state agency responsible for carrying out the decisions of CMS – the DQA.¹³ Assisted living facilities are not governed by federal regulations but are subject to Wisconsin’s licensing requirements. The DQA Bureau on Assisted Living responds to reports of abuse and determines the appropriate response. A facility could be fined or lose its license if the DQA determines that the abuse is severe or is not an isolated incident or the facility owners or managers are not taking steps to correct deficiencies.

The Office of Caregiver Quality evaluates caregivers and lists the individuals who have received serious complaints on the state’s caregiver registry.¹⁴ Although a CNA is required to complete 120 hours of training before employment, there is no requirement to obtain additional training after the CNA is employed. In fact, several Wisconsin legislators recently proposed a reduction in the training requirements to 75 hours. Fortunately, this proposal did not pass due to opposition by elder advocates, including the Ombudsman Program.

In her testimony during a hearing on the proposal, Marheine said, “It is important to note that this issue of inadequate numbers of nursing assistant staff is not particular to nursing homes. It is an identical challenge in all types of assisted living, as well, and assisted living caregivers are mandated to accrue far fewer hours of training. Clearly, the workforce issue is not about the number of hours of training required to work in any of these settings but is more likely an issue of lack of recognition, support, and inadequate financial compensation for these staff who provide the most skilled and intimate of care.”¹⁵

Lightfoot said that “facilities in Wisconsin, in his opinion, are regulated and surveyed more than similar facilities in other states.” He explained that nursing homes are surveyed annually and assisted living facilities are surveyed every two years. A facility could be surveyed more often if a complaint is filed and the complaint requires an immediate response or a plan of correction due to the nature of the complaint. He said that it is most effective to provide educational programs for facilities that emphasize ways to prevent abuse and that he participates in many such programs. Lightfoot said that he believes that “most facilities want to provide excellent services.” He pointed out that nearly 80 percent of the facilities have no complaints and 20 percent of the facilities are responsible for all complaints. His claim can be verified by statistics in a March 2019 DQA report about assisted living facilities.¹⁶

Alfred Johnson, the director of the Bureau of Assisted Living, said there has been an increase in complaints in general and an increase in reports from medical professionals. He also noted a trend that more assisted living facilities are “affiliated” rather than owned by a single operator. Affiliated facilities are owned by corporate entities that own more than one facility. Johnson is seeing more complaints regarding affiliated facilities than regarding single-operator providers.

A spokesperson for the Department of Health Services described another trend that affects the number of residents receiving care in facilities with fewer regulations. She said that there are fewer nursing homes in Wisconsin each year because of closures (six closed in 2016, eight closed in 2017, seven closed in 2018, and 13 closed in 2019).¹⁷ At the same time, there has been an overall increase in adult-family-home operators and larger community-based residential facilities. In 2018, the number of nursing homes in Wisconsin was 387 while the number of assisted living facilities was 4,079.

Several nonregulatory agencies provide services to elderly residents of nursing homes and assisted living facilities and can intervene when an elderly resident is at risk of abuse or has experienced abuse. See www.dhs.wisconsin.gov/aging for a comprehensive listing of both regulatory and nonregulatory agencies.

Assisting a Client or Family Members Before Admission to a Facility

When lawyers have the opportunity to meet with an elderly client when admission to a facility is not on the horizon, lawyers should discuss the client’s “plan” if ever he or she is not able to receive the needed level of care at home. The client might be confident that a family member or a close friend will definitely take care of everything. Lawyers should point out that the person a client is counting on might not be able to take care of everything when the time comes. An alternative plan is necessary.

Lawyers need to explain that facilities, even facilities with an excellent reputation, might be understaffed, have high turnover, and have less than ideal activity programs. A client’s plan should include selecting an advocate who will visit the facility regularly and make sure staff members understand and are able to meet the client’s needs. Moving to a different facility later might not be feasible and should not be relied on as a solution if problems develop at the first facility.

The client (or the advocate) might want to consider hiring a part-time caregiver to come to the facility when the facility is understaffed or activity programs are not scheduled. This costs more money, of course, so it is wise to plan for this cost and reserve funds, perhaps in a trust, to cover these expenses. Clients should be made aware that residential facilities do not have to maintain a specific ratio of CNA staff to residents. One CNA can be on duty for any number of residents. The administrative rule governing the number of staff on duty in a nursing home, other than RNs and LPNs, simply says “… there shall be adequate nursing service personnel assigned to care for the specific needs of each resident on each tour of duty.” The administrative rule governing staffing for assisted living facilities says, “The CBRF shall provide employees in sufficient numbers on a 24-hour basis to meet the needs of the residents.”¹⁸

Just before admission to a facility, if the lawyer has the opportunity to discuss the choice of facilities and the client or the client’s agent has not yet signed an admission contract, the lawyer can be proactive and research reports about the facility and review the admission contract. Consider contacting the Ombudsman Program to obtain information about a facility’s history of compliance with licensing requirements and history of resident complaints. Lawyers can also use the “provider search” tool on the DQA website to view the results of the facility’s most recent survey.¹⁹

The admission contract might contain a provision for mandatory arbitration or a provision that makes the “agent” personally liable for the bills. Mandatory arbitration might be less than desirable when an allegation of abuse is made. A client might not realize that, with mandatory arbitration, the client will be responsible for paying 50 percent of the arbitrator’s fees. This cost alone could discourage anyone from bringing a claim. Lawyers should make sure that the client’s financial power of attorney does not include a provision requiring that the “agent” enter into mandatory arbitration.

Assisting a Client or Family Members After Admission to a Facility

The lawyer’s obligations to an elderly client or family members do not end after a person is admitted to a facility. Neither do the family members’ duties. Even if a facility has a clean record when the person is admitted, one should not assume that good care will be provided and that the elderly resident will be safe from abuse, given the high turnover rates of staff at all levels of care. The lawyer and the family should continue to monitor the care provided.

The lawyer can periodically check with the Ombudsman Program and review the caregiver registry to see if a facility or a particular caregiver has received a complaint that is an indication that care is no longer adequate and might even be abusive. Family members (or other advocates) should personally visit the facility regularly and at different times of the day. They should look for indications that staffing is inadequate or that social programs have been eliminated. When these things can be observed, the likelihood of neglect increases.

If a resident wants to remain in a facility that is understaffed or has little or no programming for social interaction, the resident’s advocate should consider hiring an extra caregiver for several hours each day. If this is too costly, even a few hours per week is helpful. In addition to providing the resident with additional individual care, the privately hired caregiver will be available to help prevent or report abuse.

Conclusion

Lawyers representing elderly clients who may become residents of any type of facility should be well informed about the regulations governing these facilities and know how to evaluate the facilities. As with the provision of any type of health care services, the client must be a wise consumer. Beyond that, the lawyer’s role in planning for long-term care should begin long before admission to a facility and include determining the type of care the client expects to receive and developing a realistic plan to ensure the client has a caring and capable advocate and the financial resources to carry out that plan.

Endnotes

¹ This caregiver was fired shortly after she spoke to a reporter and provided information about the incident.

² Attorney Mathew Boller is a partner with the law firm of Boller & Vaughn, Madison.

³ The number of abuse reports in 2018 was 7,761. This number is higher than the number of abuse reports in 2017 (7,361) and 2016 (7,019). Ten years ago, the total number of elder abuse reports was 5,799, according to a report compiled by the Wisconsin Bureau on Aging and Disabilities Resources.

⁴ Wis. Stat. § 46.90(1)(br).

⁵ Willowridge Healthcare Facilities LLC v. Johnvin, Polk County, No. 2019CV135.

⁶ Wisconsin Statutes chapter 50 is the uniform licensure law for care and service residential facilities. More specifically, Wis. Stat. section 50.035 governs regulation of community-based residential facilities, and Wis. Stat. section 50.04 governs regulation of nursing homes. On the regulatory side, Wis. Admin. Code chapter DHS 83 sets forth the rules that apply to community-based residential facilities, and Wis. Admin. Code chapter DHS 132 sets forth the rules that apply to nursing homes. None of these rules require a specific ratio of CNA staff to patients.

⁷ Wis. Stat. section 46.90 (4) provides that staff members of a health care provider are mandatory reporters of abuse.

⁸ The following statutes govern retaliation for reports of abuse or neglect: Wis. Stat. §§ 16.009(5)(d), 46.90(4)(b), 50.07(3)(b), 146.997, 55.043.

⁹ Schultz v. Community Living Arrangements, ERD Case No. 199900376 (LIRC Aug. 29, 2003).

¹⁰ The agencies that can receive the report include any state or county agency considered an elder-at-risk agency, a state or local law enforcement agency, the Department of Health Services, and the Board on Aging and Long Term Care, which includes the Ombudsman Program.

¹¹ Summary Report submitted to Gov. Evers and members of the Wisconsin Legislature on Oct. 15, 2019 by Heather A. Bruemmer, Board on Aging and Long Term Care executive director and state long term care ombudsman.

¹² Attorney Robert Lightfoot is a shareholder with Reinhart Boerner Van Deuren s.c., Madison.

¹³ See 42 C.F.R. pt. 483. These federal regulations must be followed by facilities that want to be certified to accept Medicare or Medicaid payments.

¹⁴ Wis. Stat. section 50.065 is titled “Criminal history and patient abuse record search.” Chapter DHS 12 of the Wisconsin Administrative Code governs caregiver background checks, and chapter DHS 13 of the Wisconsin Administrative Code governs the reporting and investigation of caregiver misconduct.

¹⁵ Hearing testimony of Kim Marheine regarding reduction in training requirements on March 26, 2019.

¹⁶ A report released in March 2019 indicated that 79.7 percent of assisted living facilities in Wisconsin were the subject of no complaints in calendar year 2018. Wis. DHS, Bureau of Assisted Living, State of Assisted Living, Calendar Year 2018 (Mar. 12, 2019).

¹⁷ Elizabeth Goodsitt, a DHS spokesperson, provided these statistics in an email to the author on Feb. 10, 2020.

¹⁸ Wis. Admin. Code section DHS 132.62 applies to nursing homes; Wis. Admin. Code section DHS 83.36(1)(a) applies to assisted living facilities.

¹⁹ www.dhs.wisconsin.gov/dqa/sections.htm.