Nursing homes would be required to notify coroners of every resident's death under legislation state Rep. Tom Burch, D-Louisville, said Tuesday he will introduce in an effort to identify more abuse and neglect.
State law does not specifically require nursing homes to report deaths to coroners, who are rarely called even when abuse or neglect is suspected.
The result: Autopsies often aren't performed, and evidence isn't gathered, according to prosecutors polled as part of Gov. Steve Beshear's recent review of how allegations of nursing home abuse and neglect are investigated.
Both prosecutors and law enforcement officers said in the review it would be helpful to their investigations if coroners were called about nursing home deaths.
Attorney General Jack Conway, whose recommendations were sought for the review, proposed the change to state law. The change would require nursing home officials to report to the coroner all deaths occurring in long-term care facilities or deaths occurring shortly after a resident leaves a facility.
All of the prosecutors contacted by Conway for the review said they had not had a case from a nursing home in which an autopsy had been performed.
In a letter appended to the report released Friday, Conway said a current provision that requires caregivers to report a death from any cause "other than natural" leaves nursing homes with broad discretion on reporting a case of potential abuse or neglect.
Beshear asked Cabinet for Health and Family Services Secretary Janie Miller to conduct the review after the Herald-Leader published a series of reports this summer about gaps in the way nursing home abuse and neglect allegations are investigated. The newspaper found that from 2007 to 2009, 18 deaths resulted in Type A citations — those issued by the Cabinet when a resident's life or safety has been endangered.
As of early July, 15 of the deaths had not been prosecuted, and three deaths were considered to be open investigations.
On Friday, Beshear ordered the immediate implementation of 20 recommendations made as a result of the review. One recommendation calls for the cabinet to join with the Kentucky Coroners Association, the state Medical Examiner, and local coroners in exploring ways to involve coroners more directly in investigations.
Burch, who is chairman of the House Health and Welfare committee, said he believes the legislation he intends to propose regarding coroners will pass in the 2011 General Assembly.
Kentucky Coroners Association President Bill Bisceglia said in an interview Monday his group would support the legislation.
"We are going to be in favor of anything that protects elder citizens," said Bisceglia, Bell County Deputy Coroner.
Although Bisceglia said workloads would increase, he doesn't think county coroners would be overwhelmed by investigating nursing home deaths.
A representative of the nursing home industry was noncommittal on the issue.
Ruby Jo Cummins Lubarsky, president of the Kentucky Association of Health Care Facilities, said she doesn't comment on legislation that has not been introduced. But Lubarsky said her group generally supports efforts to prevent abuse and neglect.
In his letter to Miller, the cabinet secretary, Conway recommended several additional changes to Kentucky law in regard to abuse and neglect investigations at nursing homes. But he said all the recommendations would have to be fully explored to avoid unintended consequences.
Currently, the Cabinet for Health and Family Services sends all serious nursing home citations to Conway's Office of Medicaid Fraud and Abuse Control for investigation.
Those investigators take cases to local prosecutors when they believe the facts reveal a criminal act. The prosecutors then decide whether to act.
Among other things, Conway recommended a proposal to increase penalties for caregivers convicted of not reporting abuse.
In the past few months, Conway's office has announced criminal charges against three caregivers, including a nursing home administrator, for not reporting abuse. A nursing home corporation has also been charged.
"If caregivers don't timely report suspected abuse or neglect, then it becomes nearly impossible for ... (investigators) to secure evidence, interview the appropriate witnesses, ensure the scene is not destroyed and hold the appropriate individuals accountable," Conway said in the Aug. 31 letter to Miller.
In some cases, Conway said in the letter, facility officials are not reporting abuse immediately as required "but conducting their own internal investigation and making their own watered-down findings in order to avoid reporting."
Failure to report suspected abuse, neglect or exploitation is a Class B misdemeanor, punishable by up to 90 days in jail and up to a $250 fine.
Conway is calling for the legislature to consider increasing the penalty to either a Class A misdemeanor or a Class D felony to provide a greater deterrent, Conway spokeswoman Allison Martin said Monday. A Class D felony calls for one to five years of imprisonment and fines of $1,000 to $10,000. A Class A Misdemeanor calls for 12 months imprisonment and a fine up to $500.
In addition, Conway suggested increasing the penalty for abusing or neglecting a vulnerable adult from a Class C felony, which calls for five to 10 years in prison, to a Class B felony, which calls for 10 to 20 years in prison.
The nursing home industry, which has a powerful lobby, might resist increasing penalties for caregivers, said Burch. He said he wants to get more information on the proposal to increase penalties.
Conway also recommended that laws be changed to make it clear to which division of the cabinet nursing homes should report abuse and neglect. He said some facility officials are meeting the letter of reporting laws but not actually reporting abuse to appropriate investigators in the cabinet.
On another front, Conway suggested requiring multidisciplinary teams of investigators and professionals to review all elder-abuse cases. Under current law, the teams are optional.
Beshear's office said Friday the Cabinet will begin exploring the development of local multidisciplinary teams.
"The lack of multidisciplinary teams sometimes result in a duplication of interviews and review of medical records, as well as disparate outcomes or findings," the review report said.