Abuse investigations tend to languish | Lexington Herald Leader

It's been 11 months since Johnson Mathers Nursing Home in Carlisle received the state's most serious regulatory citation in the May 2009 death of James "Ronnie" Duncan.

The Type A citation also was sent from the Cabinet for Health and Family Services, the agency that issues the citations, to the office of Attorney General Jack Conway, which reviews them for criminal wrongdoing.

Since then, no decision has been made to close the case or pursue criminal charges in the death of the mentally handicapped man who died from profuse bleeding in the brain after a fall. Staff members put Duncan back to bed and left him without treatment for three hours, according to state and court documents.

The Duncan case is one of eight nursing home cases that have languished for months and sometimes years as investigators try to determine whether to pursue charges.

Of the 107 serious citations issued by the cabinet's Office of Inspector General from December 2006 through 2009, eight cases are open and under review by the attorney general's Office of Medicaid Fraud and Abuse Control or local prosecutors, according to a Herald-Leader review.

Those eight cases have been pending for an average of 19 months.

Shelley Johnson, spokeswoman for Conway, said there is no specific time frame in which cases are resolved because of individual factors in each investigation. (Conway has been in office since January 2008.)

Police or coroners are not normally called to nursing home deaths in Kentucky, so there is no collection of physical evidence.

In addition, investigators' high case loads, staffing shortages and coordination with other law enforcement agencies have slowed some investigations, said Johnson. Other factors include high turnover of nursing home staff and difficulty finding witnesses.

At least two cases have been open for nearly three years and involve the same nursing home.

A June 2007 citation against Villaspring of Erlanger in Kenton County says that a resident developed sepsis when the facility didn't monitor pressure ulcers. In December 2007, nursing home officials were cited for failing to monitor a resident's dose of Coumadin, a drug that prevents blood clots.

"In the case of Villaspring, this office has conducted an extensive investigation involving the allegations of abuse and neglect," Johnson said. "Our investigators have also looked into other allegations of neglect at Villaspring that were not the subject of any Type A citation."

Because Villaspring is an ongoing investigation, state officials would not comment on specific details.

Kim Majick, a spokeswoman for Villaspring, said: "The attorney general's office fully investigated these cases, and Villaspring provided multiple charts, interviews, correspondence over that 21/2-year period, and we believe the cases after thorough vetting by the AG's offices are complete."

Type A citations from the state don't include the residents' names.

Other cases that are still open include those involving:

■ Woodcrest Manor Care Center. It's been 11 months since a serious citation was issued at the Elsmere facility, according to records from the attorney general's office.

After a resident experienced five falls in less than a month, Woodcrest Manor officials placed the resident's bed against the wall and put a floor sensor in the room so staff could hear if the resident fell. After that, the resident began scooting down and going over the end of the bed so the floor sensor would not sound.

Even though the nursing staff knew that, there was no evidence that the facility addressed it. On July 9, 2009, the resident was found three feet from the bed with a fractured spine and a hematoma to the head. He was taken to a hospital, where he died six days later. According to the attorney general's office, the case is still under review.

Woodcrest Manor administrator Bob Day declined to comment.

■ Prestonsburg Health Care Center. A citation was issued in June 2009 based on a case involving a resident who for two days was pale, sweating, clutching his legs in pain and yelling "Oh God." No one called a physician, the citation said.

The following day, a licensed practical nurse showed the director of nursing the resident's legs and said she thought they were broken, but the director of nursing said nothing was wrong.

A day later, facility officials called a doctor, who sent the resident to the emergency room. Both legs were broken.

Lynn Fletcher, the administrator at the Prestonsburg facility, said in a statement that she was not aware of any open criminal investigation regarding the case. Fletcher said that after the facility was cited, it paid a fine and the cabinet's inspector general accepted its plan of correction.

"Providing compassionate and quality care to its residents and family members is Prestonsburg Health Care Center's primary focus and will continue to be so," Fletcher said.

Money and staffing

The cabinet's Office of Inspector General sends all of its serious citations to the attorney general's office. But that office has struggled to maintain staff levels in the wake of budget cuts.

The budget for the attorney general's office has been cut 26 percent since Conway took office in January 2008. In addition, said Mitchel T. Denham, executive director of the attorney general's Office of Medicaid Fraud and Abuse, three investigators have left in the past six months.

Johnson, the Conway spokeswoman, said that because the office has been unable to fill those positions, supervisors are working more cases in the field, which can result in more time between an investigator's request that a case be closed and when that request is reviewed by a supervisor.

The attorney general's office has taken steps in light of the staffing and budget constraints to ensure "that abuse/neglect investigations do not fall through the cracks," said Johnson.

Conway reorganized the investigative branch so investigators work both abuse/ neglect and fraud cases, she said.

The move more than doubled the number of investigators assigned to abuse/ neglect cases, according to Johnson.

"This has helped our efforts," she said.

In the case of Ronnie Duncan, in addition to failing to treat Duncan after his injury, the staff at Johnson Mathers Nursing Home in Carlisle allegedly failed to monitor his condition, a citation said.

Duncan's brother Lloyd Duncan has filed a lawsuit in U.S. District Court in Lexington.

John Hafner, the Lexington attorney representing the estate of Ronnie Duncan, said the case will set a precedent in the state regarding a resident's right to sue under the Federal Nursing Home Reform Act. Under the act, patients are afforded the right to the highest level of care and services.

Doris Ecton, administrator at Johnson Mathers, had no comment.

The lawsuit asks for $30 million in damages for Duncan's suffering and to deter nursing home officials "from engaging in unlawful and unconstitutional conduct."

How the data for this report was compiled

To find out how many criminal prosecutions took place after deaths or serious injuries in Kentucky long-term care facilities, the Herald-Leader requested all Type A citations issued by the state for a three-year period.

The newspaper obtained thousands of pages of documents under the state's Open Records Act from the Cabinet for Health and Family Services and the Kentucky Attorney General's office.

Because of federal privacy laws, the information did not contain any personal information, such as names. The Herald-Leader was able to identify some victims because family members had spoken publicly, or there had been criminal charges or civil lawsuits.

The investigation took more than a year.

We'll continue to write about nursing home care and oversight.