When Eldercare Homes Flout Rules, Managers Aren’t Held Responsible | Eldercare | Seven Days | Vermont's Independent Voice

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When Eldercare Homes Flout Rules, Managers Aren’t Held Responsible


Published December 11, 2019 at 10:00 a.m.

  • James Buck

In early 2014, a caller to the Vermont Department of Disabilities, Aging and Independent Living reported that at Owen House, a residential care home in Fair Haven, a resident's foot was "rotting from the inside out" due to neuropathy and poor care.

"She has brought her concerns to the administrator, Cathy Rooney, and nothing is being done about any of the issues," read notes taken by Susan Perry, a DAIL nurse.

Three days later, after the complainant called again, Perry added an update: The foot was "hot to the touch with a black spongy area on the heel larger than a 50-cent piece," and the resident was asking for a doctor.

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When DAIL inspector Margaret Higgins visited Owen House a week later, she learned that the facility's nurse had not been there for nearly a month. "The manager was instructed to call the MD immediately," Higgins wrote in a memo.

One month after that first call, the person who had complained told DAIL the resident had just been rushed to a hospital and undergone emergency surgery on the foot. In its inspection report, DAIL cited Owen House for "insufficient care."

The consequence? Rooney, the administrator, had to write a corrective action plan. "The nurse will be notified of any medical need of a resident," she promised. "The resident will then be seen by their primary doctor immediately." 

Since then, the state has issued 73 citations to Owen House and another home for elderly and disabled residents that Rooney runs, Harvey House in Castleton. In September, an inspector found the facilities hadn't even had a nurse, a core requirement, since December 2018.

Rooney did not respond to repeated requests for comment.

Vermont's 133 state-licensed assisted living and residential care homes are entrusted with more than 3,000 elderly or disabled residents but receive minimal state oversight. While these homes' administrators wield considerable power over staff and residents, they are rarely held to account when things go wrong.

Unlike administrators of federally regulated nursing homes, those in charge of state-licensed residential care homes needn't have a license or much training. That's even though many of the homes accept seniors who qualify for nursing home care. This means an administrator found unfit to manage a nursing home could become responsible for similar residents at a home overseen by the state.

In 2015, the Vermont Office of Professional Regulation put restrictions on Rachael Parker's nursing home administrator's license. DAIL regulators found that she had repeatedly failed to report or respond appropriately to accidents, injuries and a death at the Burlington nursing home then known as Starr Farm Nursing Center and now called Elderwood. Within months, Parker left to take over management of Sterling House at Richmond, a residential care home.

In a statement, Parker wrote that she won "numerous state and national awards" during her 20 years at Starr Farm, and that the corporation which owned the home "made it difficult for me to provide the level of care I desired for our residents." She further noted that the state found no violations during its most recent inspection of Sterling House.

An analysis by Vermont Public Radio and Seven Days of more than 2,000 regulatory citations issued to assisted living and residential care homes shows widespread failure to maintain adequate staffing, make background checks, and report abuse or neglect.

If problems become serious enough, the state can seize a facility and place it in temporary receivership. That happened to the Pillsbury homes in South Burlington and St. Albans in 2018, after residents experienced food shortages and inadequate nursing care. Short of receivership, it is particularly hard to hold owners and managers responsible, current and former state regulators acknowledge.

Fines are levied against businesses, not individuals, and they are rare.

After DAIL discovered the long absence of registered nursing staff at Rooney's homes, the department fined Harvey House $5,200 — less than the cost of one month's stay at most residential care homes. It was the sixth fine DAIL had issued to such a home in nearly as many years.

Regulators seem more concerned about the dearth of beds for a burgeoning population of elders than enforcing regulations meant to keep them safe. When asked about potential penalties, DAIL Commissioner Monica Hutt said: "We need to ensure that there is capacity across the state of Vermont to care for Vermonters."

Long-term beds for seniors with cognitive disorders are particularly lacking. Steven Grant, head of care coordination at the University of Vermont Medical Center, told VPR dementia patients make up the majority of the 25 to 40 people he struggles to place every day. Some, he said, have spent a year or more in the hospital waiting for a bed somewhere else.

"Providers who specialize in memory care consider themselves to be doing a bit of a favor to the state," said geriatric psychiatrist Susan Wehry, who served as DAIL commissioner in the administration of governor Peter Shumlin. This perspective influenced enforcement by regulators, she said.

"There is this attitude that because they're willing to [provide care] when ... no one else is, that there should be more forgiveness when deficiencies arise. And this was one of my worries as commissioner," Wehry said.

A registered nurse who formerly worked at Bradley House in Brattleboro told VPR she had tried to warn her employers that the facility wasn't staffed or equipped to handle some of its highest-need residents.

"I felt like I had to fight, fight with them for my cause as to why we couldn't care for them," said the nurse. She asked that her name not be used because she still works in senior care and worried that speaking out would harm her career. "They kept putting it off and putting it off because we were in a financial crisis." At the time, nearly half of the facility's 28 beds were empty. 

When she asked DAIL for help, she said, licensing chief Pamela Cota told her the situation fell into a regulatory gray zone.

"I didn't sleep nights," the nurse said.

In March 2018, one of the residents the nurse had worried about wandered out of the home and fell over a snowy embankment. After the man was treated for hypothermia, an inspector cited the home for 11 infractions, including neglectful care and having two residents it lacked the ability to care for. The home agreed to discharge "any resident who exceeds what care we are licensed to provide." 

Contacted by VPR, Cindy Jerome, the home's former executive director, said: "I always put the needs of residents first while serving as executive director of Holton Home and Bradley House."

In an interview, Cota, the licensing chief, said it's challenging to hold facility management accountable for ignoring concerns from staff — even those from registered nurses whose licenses the homes rely on to stay open.

"If we don't have a requirement that says you need to involve your nurse in all decisions about admissions, then it's very hard to hold to that standard," Cota said.

Soon after the Bradley House incident, the nurse who spoke up left for a similar job elsewhere. She said she felt her nursing license was at stake, as well as her integrity. "We have a responsibility to the people that we're caring for," she said.

Cindy Pearson, the new executive director of the nonprofit that operates Bradley House, said she couldn't comment on the 2018 incident. She did say Bradley House now "has a door alarm system, higher staffing levels and policies in place" to prevent residents from wandering.

Clayton Clark, the former director of DAIL's division of licensing and protection, noted that even Adult Protective Services, the department's abuse investigations arm, has had little success in penalizing care home managers whose decisions led to abuse, neglect or exploitation of residents.

"During my tenure, APS had made attempts to hold management accountable at facilities for negative outcomes," he said. "And the way the statute was written, it was difficult for those folks to be held accountable." Clark is now executive director of Burlington's nonprofit Converse Home.

Nearly everyone VPR and Seven Days spoke with agreed that the laws protecting elders and the regulations governing residential care homes are ripe for revision. Work on the regulatory changes began in May.

Last week, Gov. Phil Scott signaled a general willingness to examine policies that protect older Vermonters. Responding to questions at a press conference, Scott said he anticipates working with the legislature to that end. "Obviously, we'll take a look at anything that will help rectify this situation," he said.

Rep. Ann Pugh (D-South Burlington) chairs the House Committee on Human Services. She noted that DAIL's oversight relies heavily on complaints from care homes' staff, residents and family members. The department's policies and budget deserve and need "some legislative attention," she said.

At the department, Cota said she's been taking notes about how regulations should be improved. On her list: updating standards for who can be a manager of an assisted living or residential care home — and addressing ways to hold them accountable when something goes wrong.

Derek Brouwer contributed reporting and Andrea Suozzo contributed data analysis.

The original print version of this article was headlined "Buck Stops Where? | When eldercare homes flout the rules, managers aren't held responsible"