Crimes go uninvestigated at assisted living homes
This story originally appeared in the U-T San Diego.
Elder abuse, sexual assault and other acts regularly go uninvestigated as crimes at assisted living homes across California, as the facilities fall into a jurisdictional haze in which the first response is often administrative sanctions.
U-T San Diego and the CHFC Center for Health Reporting at the University of Southern California examined more than 80 possible crimes at San Diego County senior homes in the past 10 years for which criminal investigations were never launched or fizzled due to delays. A special police force serving such homes across the state has 54 officers, and they have not made an arrest in nine years.
They report not to a police chief, but to a regional director of the state Department of Social Services, or DSS, which regulates the care homes.
Among the roughly 12,000 complaints lodged with the department every year – claims including beatings, theft and deaths due to neglect – members of the law enforcement unit have referred 82 to state prosecutors as criminal cases since 2002.
Complaints to the department are more often reviewed by state analysts who have little or no law enforcement training.
A former investigator for the internal police force at the department, known as the Investigations Branch, said managers regularly closed cases once a civil penalty had been imposed – a maximum of $150 – rather than alerting prosecutors.
“You can imagine the frustration among investigators, who are sworn officers, to be told, ‘We want to do this administratively,'” said Eric Taylor, a career investigator who is now retired. “It’s not a good feeling.”
Pat Leary, senior deputy director of state Department of Social Services, said that her agency does notify local law enforcement of cases in which it has found abuse or neglect.
“That’s their role, to do the criminal prosecutions, and build cases, and send them to the district attorney for referral for further action,” Leary said.
San Diego County Deputy District Attorney Paul Greenwood, the man in charge of prosecuting elder abuse cases, was skeptical.
“I can’t think of, gosh, any cases that local police have investigated and referred to me that came directly from DSS,” Greenwood said.
The U-T investigation with the USC center found that jurisdictional issues between local police and the Investigations Branch, between the district attorney and state prosecutors, bring confusion to bear on cases that would otherwise be straightforward.
Tristan Svare, a supervising prosecutor for San Bernardino County, said he spends a lot of time educating people in law enforcement on these issues.
“Just like a bank robbery or any other serious crime, we need to be there as soon as possible, collecting evidence, interviewing witnesses,” Svare said. “Whether you think the case is a winner or a stinker, you need to report it to the district attorney.”
When night fell at J&H Quality Home Care, an assisted living house in Chula Vista catering to fixed-income seniors, one employee would slip into a client’s room and have his way with the woman inside, according to a state report, which does not identify the victim.
“Based on the investigative finding, the allegation of sexual abuse, that the resident is being sexually abused by male caregiver at night, was substantiated,” a state licensing analyst wrote in 2008.
Regulators told the licensee to fire the employee. Then they directed the operator to “conduct in-service training regarding residents’ personal rights so as to prevent same incident to happen again.”Chula Vista police Sgt. John Stires said his department responded to the home on Aug. 26, 2008, hours after receiving the report from the Department of Social Services. As soon as his officers determined there was no immediate threat, the case was referred to detectives, he said.
Approximately one month later, the criminal case closed for lack of evidence.”It didn’t meet the issuing criteria for the district attorney,” Stires said.
J&H is now out of business, and the licensee declared bankruptcy.
Population: 1.4 million
The Department of Social Services licenses 80,000 facilities across the state, including day-care centers, group homes for troubled teens and retirement homes. They serve some 1.4 million people. Among those are about 7,500 assisted living homes housing 80,000 residents.”The Community Care Licensing Division is an administrative enforcement agency which investigates cases to an administrative standard in support of licensing and exclusion actions,” DSS spokesman Michael Weston wrote in prepared remarks.
“If it appears a complaint may also involve criminal conduct, Community Care Licensing investigators immediately notify and work collaboratively with local law enforcement, who work through established methods to determine if criminal action is appropriate.”
As with local prosecutors, state prosecutors have another view. The top elder-abuse prosecutor in the Attorney General’s Office said he believes there are more potentially criminal incidents occurring inside California assisted living homes than those referred to his office.”I don’t know if they are getting information and we don’t see it or if they are not getting information,” senior assistant attorney general Mark Zahner said. “Any time we don’t get a case or a local authority doesn’t get a case where there’s elder abuse, that’s inappropriate.”
Unable to consent
At Brookdale Place of San Marcos, state regulators found that one male resident was having sexual relations with two women, patients who suffered dementia and therefore were not able to legally consent to the act.
“Client 1 admitted to having a sexual relationship with Client 2 and 3,” a 2010 report from the California Department of Social Services says. “Both clients at some point in the relationship were not able to consent to a sexual relationship.”
Nobody told the sheriff or county prosecutors, according to officials at those agencies.
The situation was reviewed as a regulatory matter, not a potential sex crime. Three months later, state officials told Brookdale to file a correction plan explaining how it would avoid such abuses in the future. Brookdale officials said state regulators dismissed the citation in July 2011 after the company appealed. They also defended the level of care they provide to residents.
“It is now and always has been our company policy to operate in the best interests of our residents and their families, and to take all reasonable and necessary measures to enrich the lives and respect the dignity of our residents,” the company wrote in a prepared response.
Most of the investigations at California’s assisted living homes are conducted by the 600 or so analysts and program managers, who also review applications for licenses and inspect facilities.
The Community Care Licensing Division also operates the little-known police force of 54 officers known as the Investigations Branch. The officers are spread across four regions throughout the state.
Four field investigators are assigned to San Diego and Orange counties, which have 1,000-plus rest homes between them. The investigators are sworn peace officers who carry badges and drive state vehicles.
The police force’s last known arrest was in 2004, when an officer arrested a 31-year-old Sacramento man in an unlawful sex case involving a 17-year-old girl. In the meantime, these are the kinds of cases found in state regulatory records that did not result in arrests:* In National City, a caregiver repeatedly grabbed the genitals of a resident and verbally abused clients, state reports show. There was no criminal investigation and the facility remains open for business.
* A resident at an Escondido facility was sprayed with insecticide. The facility was cited for personal rights violation, but the potential abuse was not investigated as a crime.
* An employee at a Pacific Beach facility managed a resident’s finances, accepted money for the service and planned for the client to pay off the staffer’s fines from a drunken-driving charge.
Taylor, the former officer, said he was not authorized to wear a uniform in part because his managers did not want him scaring clients. He never understood that thinking, but said it may be due to the department being supervised by a bureaucrat rather than a police chief.
“It would be a lot better publicly if people understood we are there and we exist,” he said. “If we are used right, we can be of huge benefit.”
At the Jeremy Residential Care Home in Chula Vista in 2011, regulators found that a worker repeatedly pushed and hit clients in the home. The Department of Social Services directed the licensee to file a written plan of correction and ensure that the staff was better trained.
“Caregiver cannot be left alone with residents until training has been completed,” an analyst wrote.
Jim Broas, the Jeremy Residential Care licensee, declined to discuss the state action.
County prosecutor Greenwood said his office should be involved in such incidents as early as possible – but isn’t looped in. “We’ve never been handed any kind of case,” he said.
A smaller force
In job postings, the Investigations Branch plays up the law-enforcement aspect of its work. New hires must hold POST certification – Peace Officer Standards and Training, the gold standard in California law enforcement.
“The Investigator, Field Unit will independently conduct the most sensitive, complex and diverse investigations, such as sexual and physical abuse, questionable/wrongful death and unlicensed facility operations,” a March ad read.
The position pays between $47,000 and $75,000 a year, plus benefits, compared with pay for inspectors without law enforcement training of $33,000 and $61,000.
Ten years ago, weeks after the recall of Gov. Gray Davis, incoming Gov. Arnold Schwarzenegger ordered a top-to-bottom review of state government. He called it the California Performance Review.
The audit suggested that the Department of Social Services’ peace officers be phased out because the vast majority of their work involved civil penalties.
“They are prohibited from carrying firearms and from making arrests and they report to a non-peace officer supervisor,” the review found. “Out of more than 9,000 complaints received for investigation, they filed an estimated 23 criminal complaints.”
The investigators issued a 16-page response, co-authored by Taylor, calling the report incomplete and inaccurate. They said their officers do make arrests and provided as evidence a copy of the department arrest policy and the arrest report from the 2004 case in Sacramento.
The California Performance Review recommendation was never adopted.
Daughter not told
Grant Gaunce Jr. was 81 when he tumbled out of his wheelchair at Sunrise at La Costa, an assisted living home in Carlsbad. He landed face-first on the floor that day in 2010, breaking his neck in two places.According to state records, the staff reported that Gaunce insisted he was fine. A visiting doctor suspected Gaunce suffered a stroke and recommended he be moved to a hospital but that did not happen immediately, a report notes.
Gaunce was taken several hours later to Scripps Memorial Hospital Encinitas, where he died the next day.
“Based on the preponderance of the evidence obtained during this investigation, the allegations of neglect and questionable death are substantiated,” the licensing record said.
Sunrise officials said the staff responded to the emergency immediately and appropriately.
The Carlsbad Police Department says it was not informed of the case. And no one from the Department of Social Services shared its findings with April Pasko, Gaunce’s daughter. She was surprised to learn her father’s death was ruled questionable.
“Why bother paying a guy from the state to investigate if they’re just going to throw the report on a shelf?” she asked.
State law enforcement officials have been aware of Community Care Licensing Division’s low number of referrals to prosecutors for years.
In 2007, the head of the attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse was so troubled by the lack of referrals to his office he tried to formalize a reporting protocol in a memo signed by top officials from both agencies.
Thomas Yanger, a now-retired executive director at the bureau, said the idea was to spur regulators to send abuse cases from residential care facilities for the elderly, or RCFEs, to state prosecutors as a matter of routine.
“We pursued it out of a desire to increase the number of RCFE elder abuse referrals that we could investigate and prosecute,” Yanger said. “To that end, we desired that DSS agree to refer to us any case in which the evidence available to DSS gave rise to a ‘reasonable suspicion’ of elder abuse.”
The five-page agreement called on licensing managers to inform the bureau of “all substantiated complaints resulting in administrative action taken by CCLD against a licensee or individual.”
Even though the memo went into effect Dec. 1, 2007, it did not result in an immediate jump in cases presented to the elder-abuse team. State records show the attorney general actually received fewer referrals in 2008, and saw an uptick in the ensuing years.
The lack of impact may be explained by language inserted by the Department of Social Services allowing regulators to pick and choose when to alert prosecutors to potential crimes.
“Law enforcement investigations are confidential, so it will be within CCLD’s discretion as to what information, if any, can be disclosed,” part of the agreement reads.
Yanger said he could not explain why the Department of Social Services declined to commit to reporting all criminal cases to his former office.
“For reasons into which I have no insight, DSS refused to obligate itself in this manner,” he wrote.
Congress has also recognized lapses in reporting suspected elder abuse. Federal lawmakers sought to address the problem in a section of the Affordable Care Act of 2010.
In response, the state attorney general issued a bulletin to every police chief, sheriff and district attorney in California alerting them to their new obligation.
“Effective immediately,” the March 2012 memo states, “all instances of suspected criminal conduct occurring in long-term care facilities must be reported to local law enforcement agencies.”
Gov. Jerry Brown also signed a bill last fall that changed the way suspected elder-abuse cases are reported. Beginning Jan. 1, all mandated reporters – nurses, caregivers and others – must immediately contact local law enforcement agencies when they learn of potential abuse. Previously, mandated reporters could choose between alerting police or a local long-term care ombudsman.
The new rules have not necessarily resulted in a spate of fresh cases. Police officials in San Diego and Chula Vista say they have seen only a slight rise in elder-abuse reports this year.
“I would call it a slow trickle,” said Stires, the Chula Vista police sergeant.
Matt Clark and Deborah Schoch contributed to this report.