<DOC>
[110th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:42951.wais]
SUBCOMMITTEE HEARING ON
IMPACT OF PREDATORS IN LONG-TERM CARE ON SMALL BUSINESS OPERATORS
=======================================================================
INVESTIGATIONS AND OVERSIGHT SUBCOMMITTEE
COMMITTEE ON SMALL BUSINESS
UNITED STATES HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 23, 2008
__________
Serial Number 110-107
__________
Printed for the use of the Committee on Small Business
Available via the World Wide Web: www.access.gpo.gov/congress/house
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HOUSE COMMITTEE ON SMALL BUSINESS
NYDIA M. VELAZQUEZ, New York, Chairwoman
HEATH SHULER, North Carolina STEVE CHABOT, Ohio, Ranking Member
CHARLES GONZALEZ, Texas ROSCOE BARTLETT, Maryland
RICK LARSEN, Washington SAM GRAVES, Missouri
RAUL GRIJALVA, Arizona TODD AKIN, Missouri
MICHAEL MICHAUD, Maine BILL SHUSTER, Pennsylvania
MELISSA BEAN, Illinois MARILYN MUSGRAVE, Colorado
HENRY CUELLAR, Texas STEVE KING, Iowa
DAN LIPINSKI, Illinois JEFF FORTENBERRY, Nebraska
GWEN MOORE, Wisconsin LYNN WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania LOUIE GOHMERT, Texas
BRUCE BRALEY, Iowa DAVID DAVIS, Tennessee
YVETTE CLARKE, New York MARY FALLIN, Oklahoma
BRAD ELLSWORTH, Indiana VERN BUCHANAN, Florida
HANK JOHNSON, Georgia
JOE SESTAK, Pennsylvania
BRIAN HIGGINS, New York
MAZIE HIRONO, Hawaii
Michael Day, Majority Staff Director
Adam Minehardt, Deputy Staff Director
Tim Slattery, Chief Counsel
Kevin Fitzpatrick, Minority Staff Director
______
SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT
JASON ALTMIRE, PENNSYLVANIA, Chairman
CHARLES GONZALEZ, Texas MARY FALLIN, Oklahoma, Ranking
RAUL GRIJALVA, Arizona LYNN WESTMORELAND, Georgia
(ii)
C O N T E N T S
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OPENING STATEMENTS
Page
Altmire, Hon. Jason.............................................. 1
Fallin, Hon. Mary................................................ 2
WITNESSES
Steele, Hon. Kris, Oklahoma House of Representatives............. 6
Banning, Ms. Sandy, Jacksonville, FL............................. 7
Bledsoe, Mr. Wes, Founder and Citizen's Advocate, A Perfect
Cause, Oklahoma City, OK....................................... 9
Coble, Mr. Tom, President, Elmbrook Management Company, Ardmore
Ok............................................................. 11
McDonough, Mr. Sean, Dougherty, Leventhal, and Price, LLP,
Moosic, PA..................................................... 13
APPENDIX
Prepared Statements:
Altmire, Hon. Jason.............................................. 25
Fallin, Hon. Mary................................................ 27
Steele, Hon. Kris, Oklahoma House of Representatives............. 29
Banning, Ms. Sandy, Jacksonville, FL............................. 31
Bledsoe, Mr. Wes, Founder and Citizen's Advocate, A Perfect
Cause, Oklahoma City, OK....................................... 36
Coble, Mr. Tom, President, Elmbrook Management Company, Ardmore
Ok............................................................. 45
McDonough, Mr. Sean, Dougherty, Leventhal, and Price, LLP,
Moosic, PA..................................................... 50
(iii)
SUBCOMMITTEE HEARING ON THE IMPACT OF PREDATORS IN LONG-TERM CARE ON
SMALL BUSINESS OPERATORS
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Wednesday, July 23, 2008
U.S. House of Representatives,
Committee on Small Business,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:00 a.m., in
Room 1539 Longworth House Office Building, Hon. Jason Altmire
[chairman of the Subcommittee] presiding.
Present: Representatives Altmire and Fallin.
Chairman Altmire. Call the hearing to order.
OPENING STATEMENT OF CHAIRMAN ALTMIRE
This hearing on sexual predators in nursing homes is now
called to order.
To put a loved one in a nursing home is never an easy one
to make. For most it is emotionally fraught and painstaking
process, but once a selection has been made, most families take
comfort in knowing that their loved one will be well cared for
and looked after.
For America's elderly and impaired, nursing homes have
historically been places of security, and yet for many
residents that is no longer the case. As a result of
insufficient data and conflicting regulations, sex offenders
have managed to infiltrate many of our country's nursing homes,
and today millions of our most vulnerable citizens remain at
risk.
In this morning's hearing we will discuss the threat that
sexual predators pose not only to our elderly, but also to the
small health care providers that protect them. This troubling
issue is of particular concern to our Committee given that the
overwhelming majority of nursing homes are also small
businesses. According to a 2006 GAO report, close to three
percent of nursing homes are now harboring sex offenders, and
for these people, advancing age is of little hindrance.
In fact, the belief that older sexual predators are
harmless is a dangerous misconception. Studies have shown that
sex offenders continue to be violent well past middle age.
It is also worth noting that not all nursing home residents
are elderly. The truth is that these facilities are often home
to younger people with serious mental and physical handicaps.
These younger residents can be both victims and perpetrators of
nursing home violence.
The question is: how did these predators break into our
long-term facilities? This is at least partially the result of
unreliable detection systems. While the National Sex Offender
Registry attempts to name all convicted sex offenders, there
are notable holes in the database. For one, the registry fails
to include predators that were convicted or released from
prison prior to its 1996 inception.
In addition to this problem, recent offenders often fail to
self-identify and, therefore, cannot be added to the registry
at all.
As a result of these two system flaws, GAO believes that
the registry under counts sexual predators by nearly 60
percent. Given the database's limited reach, it is reasonable
to assume that nursing homes may house more sexual offenders
than the three percent originally thought.
A tangle of conflicting rules and regulations have made it
all but impossible for facilities to address their problems
with sex offenders. Small health care providers are now
governed by some 70 pages of fine print in the Code of Federal
Regulations. As a result, the system is a challenge to
navigate. This is particularly true when it comes to
reconciling safety policies with privacy concerns.
Once a sexual predator has been identified, it is often
difficult for a facility to act on that information. Under the
Health Insurance Portability and Accountability Act, commonly
called HIPAA, for example, sharing information about prior
convictions can in some cases be considered a privacy
violation. And, in fact, nursing home staff and residents'
families are rarely informed of the status of other residents'
offender status.
In an attempt to fix this broken system, one state is
already moving forward. Following a series of incidences in
Oklahoma nursing homes, the state legislature passed a bill to
create separate facilities for sex offenders. In doing so, they
hoped to attack this issue head on and set a precedent that can
be a model nationwide.
Today we will discuss that particular piece of legislation
and look for other potential solutions to this problem. Nursing
homes have traditionally been a safe haven for America's
elderly and disabled, and it is important that we do everything
in our power to keep them that way.
With that I would like to thank all of the witnesses in
advance for being here and turn it over to my good friend, the
Ranking Member, Ms. Fallin, from Oklahoma for her opening
statement. And I would say that she deserves the credit for
this hearing. This is something that Oklahoma, her home State,
has taken the lead on. This was her idea to put this hearing
together. I thank her for her leadership on this, and would
turn it over to her at this time.
Ms. Fallin. Thank you, Mr. Chairman.
OPENING STATEMENT OF RANKING MEMBER FALLIN
I appreciate your very kind words, but more importantly, I
appreciate your assistance in putting this hearing together and
allowing us the opportunity to come together to discuss a very
important topic.
And I will say that I am very proud of the State of
Oklahoma and our legislature and our governor in working
together in a bipartisan manner to tackle one of our state's
and one of our nation's most important issues, and that is
protecting our seniors and those who are infirm in long-term
care or nursing homes.
And so thank you to all of our panelists who have joined us
today and our expert witnesses. I thank you and your Committee
and all they have done to put this together, along with my
staff, who I know has worked very, very hard.
As has been mentioned, we are here today to discuss the
impact of predators on long-term care and small business
operators. Most of our nursing homes and our long-term care
facilities as small businesses, and thus, that is why you are
in front of the Small Business Committee. We wanted to find an
angle to get you here so that we could talk about this
important issue.
The purpose is to examine the impact and the placement of
criminals and sexual predators on the operations of small
businesses that have long-term care facilities, and this is a
very important issue because it affects many of our parents,
our grandparents, our aunts, our uncle, our friends across our
country.
Federal law and regulations are designed to insure that
residents in nursing homes have certain basic rights, including
to be free of physical harm and abuse. These rights frequently
intersect with the placement of individuals in nursing homes
who have a record of physical assaults, including sexual
predators. Seniors residing in assisted living facilities are
some of the most vulnerable of our citizens. Any time their
safety or their health is threatened, it is both concerning and
alarming.
As someone who has had a mother, and I will even say two
grandmothers, all in the same facility at the same time, in a
nursing home in my home town where Representative Kris Steele
represents in Tecumseh, Oklahoma, I have tremendous respect and
tremendous admiration for the services that the nursing home,
Sunset Estates, provided to my relatives, and I just want to
say up front that nursing homes and long-term care facilities
deserve our respect as we are discussing this, and they have a
very special job and it takes a very special person to have a
job in a long-term care facility or a nursing home to care for
the elderly and the infirm.
But in some instances, however, these facilities and their
staff can be unaware that their could be predators living in
their facility or even without the means to insure the safety
of their residents. The rare cases of sexual assault and abuse
have been documented in these facilities, and they are
particularly abhorrent.
I am having this hearing this week to investigate both the
scope of the problem and even possible roles that the federal
government might play to help eliminate it, and I sure am
looking forward to hearing from our nursing home
representative, Mr. Coble, today who I know is just as
interested in this topic as we are in taking care of our
elderly and infirm, and I know that he wants, along with his
industry, to guarantee the safety of his employees, the safety
of his patients and the seniors, and even for the families who
are visiting facilities.
I would like to extend a very special welcome and thank you
to all of our witnesses who have traveled a long way to join us
here today and spend their time to provide your expertise, and
as I mentioned, I would especially like to welcome our state
representative, Kris Steele, who is the authority of the
Oklahoma legislation, who held many hearings in our state,
listened to all sides, all parties involved in this very
important issue, and I know brought industry together along
with families, along with patient advocates, and the
legislators and, of course, the executive branch with our
governor to pass this significant, first time, model
legislation in our nation to be able to separate out sexual
predators and have some options for states to be able to look
at that.
And so I appreciate you coming today. I want to also say a
special welcome to Mr. Coble, who is representing the health
care nursing home industry. We appreciate him coming today. I
told him, you know, our purpose today is not to knock around
nursing homes and long-term care facilities, but to work with
you and to do the best we can to create a safe environment
because we do appreciate and respect the great service that you
provide in our nation. He has been a long time owner and
operator of nine long-term care facilities.
And then Wes Bledsoe with a perfect cause has started this
crusade many, many years ago, has been around the State of
Oklahoma for a long time, lobbied me when I was lieutenant
governor of Oklahoma on this particular issue, and I know has
worked with our legislators. So, Wes, thank you for all that
you do.
He has tremendous documentation on this subject across the
whole nation, not just in our state, but he has done a lot of
research. It has personally affected him and his family.
And then I want to also thank Sandra Banning who has joined
us here today, who lost her mother as a victim of sexual
assault in Florida in a nursing home, and I know this is a very
important issue for you and you're very passionate about it.
She has been seen on national television giving information
about how important this is that we try and work together to do
what we can for our seniors and long-term care people.
And then, Mr. McDonough, I have not had a chance to meet
you yet, but we welcome you, and I appreciate you coming today
to lend your expertise and thank you for being here.
And just welcome to our committee. We know that your
information will be extremely helpful.
I want to just say a couple things. I don't want to go too
long here, but according to the most recent compilation of
statistics, the Center for Medicare and Medicaid Services
estimate that there were 15,762 nursing home facilities in the
United States with 1.7 million beds and slightly more than 46
percent of the nursing home facilities in the United States are
independent businesses and not associated with another nursing
home. Over two-thirds are operated for a for-profit basis, and
of those, approximately 81 percent had revenue under $10
million.
In short, our nursing homes are highly localized, mostly
small business, and no enterprise controls more than five
percent of the beds in the industries, and nursing homes, of
course, play a critical role in providing the care for
Americans who are physically or mentally unable to take care of
themselves and do not have a loved one who can help them.
Federal regulations established the rights of nursing home
residents, which include the right to be free from physical
abuse, including sexual abuse, and to reside in an environment
that maintains their dignity and quality of life.
Now, as a condition, Medicare and Medicaid participation
nursing homes and long-term care facilities must report
incidents of abuse according to state requirements. However,
nursing homes and long-term care homes face divergent and
conflicting federal laws that make it difficult for them to
satisfy the multiple mandates that are put upon them.
Depending upon state regulations, many long-term care
facilities and their residents may not be aware that there are
residents who are offenders. Though all sex offenders are
required to register by the National Sex Offender Registry, 25
percent of them never do register, and the extent to which
states require and have laws that apply to sex offenders
registering and reporting to the long-term care facilities
greatly varies.
When facility residents are known offenders, differing
interpretations exist among the states themselves and the
industry and even federal officials whether to disclose the
information, and the Chairman mentioned that a minute ago, that
it could violate federal and state privacy laws.
But in some instances, long-term care facilities are not
always notified when individuals with prior convictions enter,
and the assessment tools for these facilities to determine the
health care needs of the residents typically do not gather
information about prior convictions. And so in addition to
that, there is no federal law to notify a long-term care
facility of a sex offender who has been placed in their
facility, and that is one of our main concerns.
So we in Congress must look at federal law to insure that
there is a health environment for long-term care residents, one
that is free from violence and abuse to a fellow resident, and
it is important to make sure that sexual predator data is
accurate and available to nursing homes and their families so
that we can assure that they will be protected in these
facilities.
So thank you so much for joining us here today. We are
looking forward to your testimony, and thank you, Mr. Chairman.
Chairman Altmire. We will now move into the testimony from
the witnesses. We will introduce formally each of you one at a
time. Ms. Fallin will introduce her four witnesses. I will
introduce Mr. McDonough.
Before each of you go, I want to explain the five-minute
rule. Many of you, I am sure, have testified before. You will
have five minutes for your testimony. There will be a green
light for the first four minutes. When you see the light turn
yellow, that means you have one minute remaining. If you could,
start to summarize. The red light means your five minutes is
up, and so please conclude your remarks at that time.
At this point I will turn it over to Ms. Fallin to
introduce Representative Steele.
Ms. Fallin. Thank you, Mr. Chairman.
Kris Steele is our state representative from Oklahoma,
author of the law. He represents the 26th District. He has been
a member of the House since 2001. He is a member of the Public
Health Committee, Veterans Subcommittee, Human Services
Committee, and serves as the chair of the Health Subcommittee
in the legislature.
He was very instrumental in passing this bill which will
establish separate and secure long-term care health facilities
for violent and sexual offenders.
He has a Bachelor's degree in religion and a Master's and
also is Associate Minister with Wesley United Methodist Church
in Shawnee, Oklahoma.
And we are glad to have you here. Thank you for coming.
STATEMENT OF REPRESENTATIVE KRIS STEELE, DISTRICT 26, OKLAHOMA
HOUSE OF REPRESENTATIVES
Mr. Steele. Thank you very much.
Well, good morning. I would, first of all, like to say
thank you to Congresswoman Fallin, Mr. Chairman, and members of
the Committee on Small Business. It is, indeed, an honor and a
privilege to participate in this discussion with such a
distinguished group of individuals.
Greetings from the great State of Oklahoma.
I am here today to talk about the impact of predators in
long-term care facilities on small business operators. Let me
begin by saying that protecting senior adults, especially those
who are vulnerable, should be a primary function and a top
priority of government. This year the Oklahoma legislature
enacted a proactive measure intended to reduce the risk of
abuse and provide appropriate safeguards for seniors living in
nursing homes.
A growing number of registered sex offenders sparked a
discussion of where to place those individuals who have served
their time of incarceration and yet are no longer capable of
independent living. An in-depth study on this issue resulted in
the creation of House Bill 2407, which directs the Department
of Health to request bids from the private sector for the
operation of a stand alone, specialized, long-term care
facility that will house elderly sex offenders, registered sex
offenders.
The request for proposal will also set forth certain
specifications to designate the heightened security measures
necessary to protect the public and the residents of the said
facility. According to the Oklahoma Department of Corrections,
an estimated 2,450 inmates convicted of sex crimes or violent
crimes will be released from prison in Oklahoma in the next ten
years. Twenty-six percent of these individuals will be age 51
or over and potentially in need of long-term care.
Numerous studies confirm that certain sex offenders are
highly resistent to rehabilitation. Registered sex offenders
living in nursing homes can create a dangerous environment for
the other residents in the home. It is estimated that
approximately 30 individuals listed on the Oklahoma sex
offender registry currently reside in nursing homes today.
In 2005, Oklahoma passed a law requiring nursing homes to
post public notifications when a registered sex offender is
admitted. This measure also directed the Department of
Corrections of notify local law enforcement entities about the
location of sex offenders residing in nursing homes within
their community.
However, because of low staff levels and a short supply of
security guards, some long-term care operators have experienced
difficulty in properly monitoring sex offenders residing in
their facilities.
Federal regulations also prevent nursing homes from
restraining residents except in very rare circumstances.
Offenders living in nursing homes also present a challenge for
small businesses. Knowing an offender is living in a particular
facility creates a sense of uneasiness, a sense of unrest, and
a sense of uncertainty for family, loved ones, and the other
residents. The perception is that no one is safe in a home with
an offender. Yet federal law requires that states pay for long-
term care services for those individuals who are Medicaid and
Medicare eligible regardless of whether or not they're
convicted felons.
An interim study conducted in the fall of 2007 resulted in
nursing home officials encouraging lawmakers to prevent those
convicted of sex crimes from being placed in with the general
population. In addition, advocate groups, such as AARP and
others, expressed support for the establishment of a separate
facility for registered offenders in need of long-term care.
By encouraging the private sector to establish a nursing
home with additional security measures for registered
offenders, it is the belief of our state that better
protections would be afforded to the aging population while
meeting the needs of those who have served their debt to
society yet remain at risk of reoffending.
Protecting our senior adults, again, should be a primary
responsibility and priority of government. Our goal should be
focused on creating safe environments so that our senior adults
can live the latter part of their lives free from the fear of
harassment or assault. Implementing appropriate safeguards for
the elderly is imperative in making this goal a reality.
Again, thank you for the opportunity to address you about
this topic today.
[The prepared statement of Rep.Steele can be found in the
appendis at page 29.]
Ms. Fallin. Thank you so much Representative Steele.
Our next witness is Ms. Banning, and she is a mother and a
victim of sexual assault. I am sorry. Her mother was a victim
of sexual assault in a Jacksonville, Florida nursing home. She
was featured on the Today Show broadcast in April as an
advocate for nursing home resident protection from sexual
offenders.
She has also appeared on CBS Evening News along with other
media from around the State of Florida. She is serving as the
medical staff manager for the U.S. Navy Medicine Support
Command in her capacity which she has had for 15 years and has
been a government employee for over 28 years.
And we welcome you and thank you for coming to share your
very personal story.
STATEMENT OF SANDRA BANNING, JACKSONVILLE, FLORIDA
Ms. Banning. Thank you, Congresswoman Fallin, Chairman
Altmire, distinguished members. I have never addressed such an
august body before. So if my lips tremble, please forgive me.
July 23rd, 2008, today. July 23rd, 2002, six years ago
today, Ivy Edwards took his wheelchair into my mother's room.
He placed that wheelchair under the handle of her door, turned
it sideways so that he couldn't be disturbed. He climbed into
bed with my mother, and he raped her.
I received a call that night from the nursing home staff
and said, ``Ms. Banning, we caught a man in bed with your
mother, but he was just lying there. Nothing was going on.
She's asleep. Do you want us to send her to the Sexual Assault
Response Center?''
I said, ``Are you sure nothing happened?''
They said, ``Yes, he was just lying there.''
I said, ``For God's sakes, don't scare her to death. No,
don't wake her up.''
The next morning at work, ten o'clock, I received a call
from the social worker from the same nursing home who said,
``Ms. Banning, more occurred last night than we originally told
you, and we're going to have to send your mother to the Sexual
Assault Response Center.''
I said, ``You're not sending her anywhere till I get
there.''
So when I got there, I was met by my mother, by the police,
by the members of the staff, and my mother looked at me and
said, ``Hi.''
And I said, ``Hi, Mamma.'' I said, ``Do you know why I'm
here?``
And she said, ``For a visit?''
And I said, ``No.`` I said, ``Mamma, last night you were
raped.''
My mother's expression was, ``Oh, my God.'' My worst fear
was realized. I placed my mother in a home for care so that she
would be safe because in her own home she walked the streets at
night, and I would say, ``Mamma, you're going to get raped if
you walk the streets at night.''
And she'd say, ``Oh, Sandra, who'd rape an old woman?''
Ivy Edwards would. Ivy Edwards was arrested at 2:30 that
morning. The nursing home bagged my mother's clothes, as they
termed it. They put everything in for evidence. Ivy Edwards was
taken to the police before I was ever called to be told that
she had been raped. When Ivy Edwards was arrested, it was his
59th arrest. He had been arrested since the 1940s. Among them
sexual assault, child molestation, burglary, heinous crimes,
but the court system placed Ivy Edwards in the nursing home
with my mother from a homeless shelter because he was a danger
to society and others.
No one, not my mother, not her family, not her daughter,
should have to hold her hand while she undergoes sexual assault
examination and watch the tears stream out her face because
someone had taken from her what she did not give voluntarily.
My mother was married to my father for 23 years. To the
best of my knowledge, no one ever touched my mother except my
father until Ivy Edwards took control. So what I ask is that
Congress take steps to put in place a regulation, a law, some
sort of guarantee that your mother, your father, your brother,
your sister, yourself will not be out there and placed in a
home with another Ivy Edwards.
We have to make a change. We have to protect those that
cannot protect themselves. We protect the children, but when
you look at our nursing home residents, they are two, three,
four, five years old in their mind. So let's protect them, too.
Thank you so much for the opportunity to address. I
appreciate, and I hope so much that we can make some changes.
[The prepared statement of Ms. Banning can be found in the
appendis at page 31.]
Ms. Fallin. Thank you, Ms. Banning. We appreciate your
sharing such a very personal story with us, and we will use
what is meant for evil for good here.
Now it is my pleasure to welcome Wes Bledsoe, who has been
a very dedicated founder of a group called the Perfect Cause,
which is a citizen advocacy organization. He has been very
tireless in his work that he has begun on the disabled and
elderly after the death of his own grandmother in May of 2000
at Eunice Allen. He uncovered her nursing home's attempt to
cover up the negligent acts that led to her death and has since
exposed patterns of some abuse and neglect that have been in
nursing home for long-term care residents and has been a very
outspoken person on this particular issue.
And, Wes, we appreciate all of your research and your work
and appreciate your coming today to give testimony.
STATEMENT OF WES BLEDSOE, FOUNDER AND CITIZENS' ADVOCATE, A
PERFECT CAUSE
Mr. Bledsoe. Thank you, Congresswoman, and thank you, Mr.
Chairman, members of the Committee and staff. Thank you for
this opportunity to talk about the impact of predators in long-
term care facilities and small business operators.
Predators in nursing homes are bad for business. Much like
the dead canary in a mine, it is a signal of invisible danger
that requires immediate action. So, too, do predators in
nursing home.
I have a lot of information that I can share with you
today, and so I would like to just get down to key bullet
points and hopefully you can ask questions that I can provide
more detail to you as we move forward.
What is this about? It is about the delivery of a product,
good quality care in nursing home, which is mandated by federal
legislation, by state legislation across this country.
What we are talking about are rapes, sexual assaults,
physical assaults, and even murders committed by violent and
sexual offenders who reside as residents in long-term care
facilities. So far we have documented over 60 of these crimes
committed by these offenders against residents, female as well
as male, staff, and even one three year old little girl who was
visiting her great grandfather in a Richardson, Texas nursing
home.
What are the types of offenders? And we have mentioned
registered sex offenders as a problem, but there are other
types of offenders we have key concerns about, and those
offenders include inmates, parolees, violent offenders found
incompetent to stand trial.
Mr. Chairman, as you pointed out, it is not just registered
sex offenders. There are many sex offenders who are not
required to register. They were grandfathered out before the
registration laws were enacted. And there is also registered
sex offenders who do not have to register for life.
We also have convicted felons, and then we have a group of
residents who assault others in long-term care facilities but
were never charged or prosecuted because either they or their
victim are of diminished capacity.
Who places these offenders in long-term care facilities?
District court judges, county sheriffs, adult protective
services organizations, Departments of Corrections, and
sometimes they are agencies to find housing for offenders being
released from Department of Corrections facilities, as well as
individual offenders can admit themselves or their families
admit them into these facilities.
We have heard all kinds of justification which we refer to
as fairy tales used by officials to justify the placement of
these residents in facilities. We hear that they are all old.
Not true. Much like the GAO report has documented and the
reports that we have also conducted, over half of these
offenders are under 65 years of age. We found 19 year old
registered sex offenders living as residents in nursing homes.
Old offenders do not pose a threat. Ivy Edwards is one of
those examples. There are other examples where elderly
offenders do absolutely pose a threat.
They are incapacitated. They are in wheelchairs. They
cannot harm anybody. Again, not true. Ivy Edwards was in a
wheelchair and other offenders, bilateral amputees, those with
partially amputated feet have also raped and assaulted fellow
residents in long-term care facilities.
They were told that child molesters are safe because they
don't pose a threat to those old people. Again, documented
cases that we have provided to this Committee through court
records, police records and media reports show, again, that
that is absolutely false.
Nursing homes are capable of handling these offenders.
There is not any training for nursing home staff on how to deal
with these criminal offenders.
Other prior offenses are minor or these crimes happened
long ago. Not true. Again, most of these crimes have been
committed within the last 14 years. We have found these
offenders living in long-term care facilities. And the crimes,
the crimes they were committed for were not out urinating in
public behind a bush or in the alley. These crimes are rape,
assault, and murder.
These offenders have paid their debt to society. We have
heard that a lot. We have documented cases where offenders were
sent directly to nursing homes and other long-term care
facilities without ever going to a Department of Corrections
Facility. They went from jail conviction to a nursing home, and
even in documents where they said they pose a significant
threat to the safety of themselves and other.
What can we do? We have several recommendations I would
like to respond to you during the question period, and I can
share those recommendations with you.
Thank you for this opportunity to come forward. I hope
tonight that you will give thought to what is happening to our
residents and what happened to Sandy Banning's mother.
Thank you very much for this opportunity.
[The prepared statement of Mr. Bledsoe can be found in the
appendix at page 36.]
Ms. Fallin. Thank you, Mr. Bledsoe. We appreciate you
coming today.
And now I would like to introduce Mr. Tom Coble, who is the
founder and CEO of Health Care Management Company of Oklahoma,
which specializes in creating long-term care based integrated
health care delivery systems. HMC partners with organizations
to evaluate, develop and operate Medicare Advantage special
needs plans for institutional, home, and community based health
plans.
He also owns and operates eight skilled nursing facilities,
an assisted living facility, and a rehabilitation company, and
is the president of the Oklahoma Association of Health Care
Providers, and we appreciate you joining us here today.
Welcome.
STATEMENT OF TOM COBLE, PRESIDENT, ELMBROOK MANAGEMENT COMPANY
ON BEHALF OF THE AMERICAN HEALTH CARE ASSOCIATION
Mr. Coble. Thank you. Thank you, Chairman Altmire, Ranking
Member Fallin, and members of this Subcommittee.
I am grateful for the opportunity to be with you here today
to offer our profession's perspective on the very difficult and
complex issue of sex offenders in our nursing facilities.
I am honored to be here today representing the American
Health Care Association. Americans are living longer, and our
nation's aging population is growing. Many of these individuals
have medical and cognitive conditions which require care in a
nursing facility. Currently more than three million American
each year rely on the care and services delivered in one of the
nation's nearly 16,000 nursing facilities.
The forecast for the demand for nursing care is alarming. A
March 2008 report from the National Investment Center for
Senior Housing and Care Industry indicates that demand for
long-term care services will more than double by 2040.
Even with this high demand and rapidly growing need of the
nation's aging population, nursing homes have continued to
improve quality. I am proud of the efforts and initiatives
advanced by the association that I represent today and seek to
enhance improved quality of care and services provided in our
nation's nursing facilities each day.
I am here today to discuss the impact of predators in long-
term care on small business operators. Reported problems
involving sex offenders have been rare, but any incident is
unacceptable, especially given the age and infirmity of those
involved. Some have stated that there is a simple or easy
solution to this very complex issue, but unfortunately that is
just not the case.
Providing long-term care and other health services for
those who have any type of criminal past is a critical societal
issue. Any solution must encompass not only health care
providers and their patients, but also law enforcement and
federal and state agencies.
The basic question seems to be what and whose ethical and
legal obligation it is to insure that individuals who have paid
their debt for prior criminal activity have their health care
needs met as members of our society. When these individuals
reach an age or exhibit physical condition or cognitive
impairments that require long-term care services, where and how
should their health care needs be met to insure everyone's
safety and security?
As you are aware nursing homes provide a residential
setting with 24-hour care and services for millions of
individuals who require significant assistance dues to physical
or mental limitations. It is critical for this Committee and
others to understand that these facilities fulfill a necessary
role caring for the frail, elderly and disabled who can no
longer safely be cared for in their homes or communities.
The most important aspect of determining appropriate
services in any nursing facility patient, including security
issues is the individual patient assessment. Currently a
federally mandated assessment must occur upon admission to a
facility in order to create an individual care plan for each
resident that insures their clinical needs are met, as well as
addresses any safety or security concerns.
A resident who is known to have a criminal history, is
known to be a registered sex offender may or may not require
additional supervision or separation from the general facility
population. An individualized care plan for a convicted
criminal or sex offender in a persistent vegetative state would
clearly be different from an ambulatory resident who has no
criminal past but has exhibited behavioral issues.
In 2006, the GAO issued a report on registered sex
offenders in long-term care facilities. While the study focused
on the issue of sexual offenders residing in nursing
facilities, we were dismayed that the report stopped short of
issuing any recommendation about the profession should address
this issue.
Presently in most states long-term care facilities are not
notified by law enforcement officials of an incoming resident
status as a sex offender or of their criminal background which
prevents a facility of accurately evaluating the potential risk
posed by the former sex offender as an individual basis. While
the patient's history may contribute to and alter the
individual care plan, it is important to understand that even
with the information about a patient's criminal past, long-term
care givers may be unable to deny admission when placement is
court ordered.
Also of note are the strict federal and state discharge
requirements which may prevent the timely discharge of patients
discovered to have a criminal past or, more significantly, be
exhibiting behaviors that actually pose safety and security
issues.
Health care providers, government oversight agencies, and
enforcement must come together whether on a state or national
level to begin to address reasonable and appropriate solutions
to this growing problem. AHCA is deeply concerned about the
issue of sexual predators in nursing homes and will continue to
work to insure all residents, family and staff are safe in
their facilities.
However, facilities can only do so much in the current
system. A national database of sex offenders as well as a
consistent and standard definition of the term need to be
created. Policy makers and law enforcement also have a
responsibility to provide clear policies for long-term care
facilities to deal with this issue that addresses resident
protection, as well as compliance with federal privacy laws.
AHCA is committed to quality long-term care for all
residents, and we are continually working to improve and
enhance quality in all facilities. A collaborative effort
between long-term care providers, Congress, and law enforcement
is necessary to achieve the highest levels of safety for all
residents.
I would like to end my testimony today on a personal note.
I have four family members living in our facilities right now,
including my mother and wife's grandfather. I live in the
community where I was born, raised, and will be buried. Every
day I help to take care of the people who helped raise,
educate, and prepare me for life. I take the responsibility of
caring them very seriously and I strive to provide the highest
quality of care possible.
Long-term caregivers have many employment choices, but they
choose to come to work in our facility each day providing care
to the frailest of our society. they are heroes of long-term
care, and I entrust the care of my loved ones to them each day.
Thank you for the opportunity to offer these comments on
behalf of millions of professional, compassionate, long-term
caregivers and the millions of frail elderly and disabled
Americans they serve each day.
I look forward to responding to your questions.
[The prepared statement of Mr. Coble can be found in the
appendix at page 45.]
Chairman Altmire. Thank you, Mr. Coble.
Mr. McDonough, Mr. Sean McDonough is an attorney from
Pennsylvania, and his law firm recently represented the victim
of an assault in a nursing home, and in that case the court
found that the nursing home was negligent in allowing a
resident with a criminal background to be enrolled in the
facility without notifying the residents or taking steps to
protect their safety.
Mr. McDonough is Board certified in child advocacy by the
National Board of Child Advocacy and a member of the American
Board of Child Advocates.
Thank you for being here, Mr. McDonough. We look forward to
your testimony.
STATEMENT OF SEAN McDONOUGH, ESQ., DOUGHERTY, LEVENTHAL, AND
PRICE, LLP
Mr. McDonough. Good morning, Congressman Altmire, Ranking
Member Fallin, and members and staff of the Committee. I have
been asked to provide testimony this morning on the issue of
the impact of predators on long-term care facilities on small
business operators. As the Congressman noted, my firm, myself
and my partner, Pat Dougherty, recently represented a woman by
the name of Lilian Guernsey, who is now deceased, and her son
Thomas Itterly arising out of two documented sexual assaults
perpetrated upon Ms. Guernsey by 31 year old Daniel Statham.
An overview of the circumstances surrounding Mr. Statham's
admission to the Country Living Personal Care Home demonstrate
in graphic fashion the need for some legislation to assist
small business operators in avoiding the myriad of problems
associated with accepting sexual offenders at their facilities
without appropriate screening or consideration as to whether
these individuals should be accepted into a setting where some
of our most vulnerable citizens are placed for care.
Steps need to be taken to insure that our elderly and
infirm citizens do not suffer the type of violent attack
experienced by Lilian Guernsey at the hands of Mr. Statham.
Mr. Statham was 31 years old at the time he raped Lilian
Guernsey. At the time that he arrived at the Country Living
Personal Care Home, he had had eight prior adult arrests, three
convictions,a dn two adult commitments to correctional
facilities. In 1992 alone, he had been charged with no less
than 11 offenses, some of which were violent offenses and many
of which he was not prosecuted for because he was determined to
be incompetent to stand trial.
However, in 1994, Statham was arrested in Lackawana County,
Pennsylvania as a result of an assault on his girlfriend, and
he was sentenced to serve one to three years in prison. Shortly
thereafter, he pled guilty to a charge of aggravated indecent
assault in northeastern Pennsylvania in Wayne County and was
sentenced to serve three to six years in a state correctional
facility.
In that case Statham had taken a 13 year old girl into a
wooded area and raped her. Statham refused to participate in a
sexual offender treatment program during his period of
incarceration, and as a result he maxed out his sentence, and
this is where the case really becomes troubling.
At the completion of Mr. Statham's sentence, he did not
provide the Commonwealth of Pennsylvania with an address where
he could go. As a result of that, the commonwealth directed the
State Police to take him to the Northumberland County Prison.
At that time, the judicial system in Northumberland County
brought Statham before the court and he was sentenced to time
serve in six months' probation.
When the court made an inquiry as to whether that probation
was in the mitigated range for the offense, the probation
officer indicated, ``I have no idea. We have no information on
the defendant at all.''
Therefore, Statham was permitted to leave the prison and
taken first to the Omni One Personal Care Home and then Country
Living without even a rudimentary presentence investigation
having been performed. The order of court, which we have
incorporated into the materials which we submitted for the
consideration of the panel stated the following: ``the court
directs the defendant to take a bus to a halfway house in
Scranton and to maintain his residence in Northumberland
County.''
It was established during Ms. Guernsey's trial against
Country Living that Northumberland County prison officials had
notified the personal care homes, both personal care homes
where Mr. Statham had resided prior to the rape that he had
been sentenced for a violent sexual offense and that he was
being released directly from a correctional facility.
Lilian Guernsey was raped on February 27, 2002. My partner
and I tried that case exactly four years to the date beginning
on February 27 of 2006. The events of February 27, 2002 could
have been prevented if some initiatives, which Mr. Bledsoe has
been proposing around the country, had been implemented.
The sexual offender assessment report, which I have
referenced in the materials provided to the panel, indicates in
graphic detail the indignities visited upon Lilian Guernsey by
Daniel Statham on that tragic evening. Lilian's story needed to
be told as to what occurred to her on that evening, and her
victimization unfolded during the trial which occurred.
After she was assaulted, Lilian returned to Memphis,
Tennessee with her son Tom, and he cared for his mom in his own
home as best he could, but she lived out her days in a nursing
home outside of Memphis. Lilian Guernsey died within two months
of the conclusion of the trial brought on her behalf against
Country Living Personal Care Home. She was 90 years old at the
time of her death.
As a result of the attack on Lilian Guernsey, Daniel
Statham was charged with rape, sexual assault, and indecent
assault. He currently is serving an extended prison sentence at
the state correctional institution at Camp Hill.
As a final observation, I would suggest to the members of
this panel would be very honorable work that you are doing here
today, that some initiatives need to be in place by the time
Daniel Statham is released from prison.
Thank you.
[The written statement of Mr. McDonough can be found in the
appendix at page 50.)
Chairman Altmire. Thank you, Mr. McDonough, and thank you
to all of the witnesses.
We will now enter into the question and answer portion, and
what we will do is a couple of rounds. I will ask a few
questions and turn it over to Ms. Fallin and we will do it
again.
I wanted to start with Mr. Bledsoe, and we appreciate you
being here with the expertise that you bring to the table on
this issue. States have widely differing procedures regarding
the issues that we're discussing today, and I wondered if you
had some recommendations on states in the country that we could
use as a model that have taken a leadership role and taken
steps to address this issue and were Congress to get involved
on the legislative side, what states could we use to exemplify
with regard to this issue?
Mr. Bledsoe. Thank you, Mr. Chairman. An excellent
question.
There are several recommendations that I have, some of
which have been implemented by other states, and some have not.
The biggest recommendation I have is to follow Oklahoma's
example. Representative Steele, Senator Tom Adleson from
Oklahoma, ten percent of the legislators in Oklahoma co-
sponsored this bill, the long-term care sex offender's bill,
House Bill 2704 in Oklahoma. That bill separating offenders
from non-offenders is the most concrete legislation that we can
do at the federal level and at each state level. It absolutely
removes predators from their prey. So that would be my first
recommendation.
The second recommendation is we need to do criminal
background checks on all residents coming into facilities.
Illinois conducted criminal background checks on their
residents, and while we had documented about 100 registered sex
offenders living as residents in long-term care facilities in
Illinois, when they did criminal background checks, they found
over 1,000 convicted felons were living in their facilities.
So criminal background checks will answer a lot of
questions and respond to some issues that Mr. Coble brought up
about how we screen these people and how we decide what kind of
levels of care do we need to be providing for them.
Notification is an absolute necessity between the criminal
background checks and until the time we have these secure long-
term care facilities following Oklahoma's example in place.
Staff, residents, families, and visitors at these
facilities absolutely need to know if there's a criminal
offender in the facility. Oklahoma is one of those states that
has some of that notification. We would like to see more.
We also need to make sure that crimes are being reported to
law enforcement. Many of these crimes are never reported to law
enforcement. There needs to be legislation to make sure that
crimes are mandatorily reported to law enforcement when they're
found or suspected. There are statutes across the country for
this, but they are relatively loose, and they need to be
tightened up.
Another recommendation is we need to absolutely track these
criminal offenses that take place in long-term care. We need to
track the offense, where it occurred. As well, we need to track
the offender. When an offender commits a crime in a long-term
care facility, if we haven't already done a criminal background
check, we need to do a criminal background check on that
offender and see what kind of history they have.
That way in the future as we move forward with this system,
we can monitor, we can evaluate, and we can modify it
accordingly.
And then we should also look at video monitoring and make
that an option for residents who want to have video monitoring
in their rooms, and this way we can see who it is that's been
assaulting them and identify whether that's a staff member,
whether it's a visitor, or if it is a fellow resident and who
it is so that we can take appropriate action.
Chairman Altmire. Thank you.
Mr. McDonough, in your lawsuit the court found that there
were no reasonable attempts to create safeguards to protect
residents. Can you identify some of the basic steps that
nursing homes can take moving forward to address this type of
problem?
Mr. McDonough. I think, and I am sensitive, Congressman
Altmire, to Mr. Coble concerns relative to the management of
risk, and I think that the nursing home industry and the
personal care home industry should aggressively look toward
government. I know regulation is typically considered to be a
bad thing, but in this particular instance it is a good thing.
In our case, as I tried to highlight, unfortunately the
criminal justice system and the court was essentially complicit
in the victimization of Ms. Guernsey. It seems to me that the
most appropriate step has to be very detailed reporting
requirements with respect to past criminal history so that
nursing home operators without unnecessary government
interference can certainly have the tools available to them to
make an informed decision as to whether or not a particular
individual is an appropriate candidate for their facility.
So it would seem to me that particularly when someone is
referred to a long-term care facility directly from the
criminal justice system, as was the case with Daniel Statham,
that the referring agency should have an affirmative obligation
to specifically detail that individuals' past criminal history.
I think as a threshold that is a very minimum requirement
that could be instituted. Now, in our particular case it was
established that the owner of the facility did, in fact, or had
been made aware of Mr. Statham's background. So it was not
quite as much an issue in our case, and it was one of the
things that the court found to be particularly egregious about
the home's conduct.
But there has to be knowledge on the part of the operators
of these facilities as to the nature of the person's prior
offenses.
Chairman Altmire. So do you believe, Mr. McDonough, that
state registries and background checks are adequate safeguards
or you are recommending them as a minimum?
Mr. McDonough. Well, there is certainly a minimum
safeguard, and then there has to be some additional
consequences for the failure to properly notify the personal
care homes and the nursing homes about the person's background.
Here we had a breakdown in two separate probation
departments, one in Wyoming County where the personal care
facility at issue was located, as well as Northumberland
County. So certainly the registration procedures for Megan's
law offenders in the Commonwealth of Pennsylvania, which is
currently in place, needs to be enforced, and I think that
federal congressional oversight of this issue is certainly
warranted in light of the tragic consequences that have been
documented before the panel this morning.
Chairman Altmire. Thank you.
And I will give one more follow-up question to Mr. Coble
and then we will turn it over to Congresswoman Fallin.
You have heard what Mr. Bledsoe and Mr. McDonough and the
other witnesses have said. What is the impact on the nursing
home industry of this type of recommendation, a notification
where everyone coming into the nursing home would be aware of
the background of everybody else in the nursing home as it
relates to this issue? What would that do to your industry?
Mr. Coble. Well, our industry certainly agrees, Mr.
Chairman, with the need to be notified, and we don't want to
take anyone to any of our facilities who is danger to any of
our residents, our visitors, our staff, anyone.
We need notification. We need databases that are accurate.
We do not need the courts ordering people into our facilities
that are a danger to anyone. It is all based around assessment.
I mean, if that person is in an end of life vegetative
state it is one thing. If they are, as in some cases we have
heard today, able to harm another person, they do not need to
be there.
And so our industry is for quality and safety. As I said,
my mother lives there. I am not going to put anyone in one of
my facilities that would harm my mother.
The other thing that will be a challenge to our legislation
in Oklahoma is federal privacy laws, as the Health Department
starts to build a framework around the legislation that was
passed, and also some very strict federal regulations around
discharge and transfers of residents who reside in our
facilities.
Many times we want to move residents from our facilities
and we cannot do it because federal law prohibits us from being
able to do that, and so it would be very helpful. You can do
many things up here that would allow the legislation that
passed in Oklahoma to advance.
Ms. Fallin. Thank you, Mr. Chairman.
To follow up on your comment, Tom, about federal law
prohibits you from transferring, can you explain that a little
bit further? So if you know that you have an offender in your
home, are you saying that you are prohibited from transferring
them?
Mr. Coble. If we have someone in our home, whether it is a
sexual predator or someone who has some really inappropriate
behavior that could cause them to be a safety or a danger to
another person, it is very difficult to transfer them. They
have to be a danger to themselves or to others to the point
that we cannot meet their needs or basically the fact that they
are just not paying for their care.
And so those are the only two circumstances for which, and
then at that point in time it is very difficult to get them out
because the Department of Human Services or the ombudsman
intercede on their behalf, and we are not allowed to get rid of
them.
You know, the legislation that Representative Steele came
forward with and championed, I mean, all parties sitting at
this table were lock in arms in support of, and so we need a
place that when we do identify them, that if as a small
business owner it is causing concern and distress to family
members, residents, staff, that we can then move that person
to.
Ms. Fallin. Are there any challenges you see with Medicare
or Medicaid as far as receiving federal government help to
house these offenders, to be able to put them in a separate,
stand alone facility like the legislation Oklahoma has passed?
Do you see any type of hindrances that we need to address on
the federal level of taking the federal money and using that
for a stand alone facility to house these offenders?
Mr. Coble. I am not aware of any, but AHCA would be glad to
provide you with that information.
Ms. Fallin. Representative Steele, do you know of anything
we need to be addressing on the federal side?
Mr. Steele. Well, I would reiterate the fact that both
Medicaid and Medicare are entitlement programs, and as I
understand both of those programs, if a person qualifies, meets
the eligibility criteria, then he or she is eligible for the
funding for those long-term care services, and with the
legislation that we are talking about today, this stand alone
facility is a nursing home. It is not a prison, meaning that
the residents in that facility would be treated just like other
nursing homes.
It would have stricter supervision, a higher level of
surveillance and security, but the residents would still be
free within that facility, and to date I am not aware of
anything that would prohibit Medicaid or Medicare funding for
individuals who may be placed in this particular facility.
Ms. Fallin. Are there any changes that you see that the
nursing home industry would need to be able to have this
separate, stand alone facility in law?
Mr. Steele. Well, in Oklahoma, we are primarily a rural
state. We are proud of that fact, and we have a lot of nursing
homes in our state that are at or below capacity right now. So
I think the idea for what we want to do in Oklahoma is to
utilize an existing building for the operation of this.
The industry would have to meet the additional security
measures that the Department of Health will create as they
continue to put together the request for proposals in order to
qualify as a potential resident or potential provider for this
facility.
Ms. Fallin. Sean, you talked about some of the legal
issues. How do we address the privacy issue of the patients
versus actually being able to get good, detailed information
that Mr. Coble has said that he needs? How do we be able to
balance the two?
Mr. Coble. Well, it certainly is a question of balance, but
I think as I had indicated in my earlier remarks, first and
foremost is to have an adequate criminal background check on
the individual, and there are existing laws in place on the
state level that require registration of particularly in the
case of sexual offenders, and while I think there are other
violent type people in these homes, the criminal background
checks on these individuals for convicted offenses in my view
do not implicate the privacy issues that exist with respect to
health care records.
Say if someone is diagnosed with some type of a mental
illness, that is an issue separate and apart from the criminal
background that many of these people bring to the facilities.
So I do not see a privacy issue with respect to the criminal
predators.
With respect to violent tendencies as a function of mental
disabilities, that is a different issue, Congresswoman, that
candidly I do not have the answer to in light of the HIPAA
regulations, which we all know are very stringent.
Ms. Fallin. I have one last question here for now. All of
the recommendations that you heard from Mr. Bledsoe and also
from--do you pronounce it McDonough?
Mr. McDonough. McDonough.
Ms. Fallin. I am sorry. I mispronounced it earlier.
Did you hear anything that you thought would not be
reasonable as far as being able to implement some of those
recommendations or would be cost prohibited?
Mr. Coble. Well, I think most of the changes in law really
that give us the freedom to operate do not have a cost to them,
but we feel that the criminal background checks should be done
by law enforcement or state agencies and provided at a point
where we can access them and look into them because they have
access to the information and the ability to simulate that so
that we can check against that.
So outside of those things, no.
Ms. Fallin. Okay. Thank you.
Thank you, Mr. Chairman.
Chairman Altmire. I wanted to ask Representative Steele a
couple of questions about his bill.
You provide for the creation of separate nursing facilities
for sex offenders, and I am interested in the cost of this. Is
this something that you feel that there is adequate support in
the nursing home industry that they would operate this
independently and feel like they would be able to make money
doing this and do it on their own, or is this something that
you would need state or federal money or some other source to
help fund?
Mr. Steele. That is a great question, and I appreciate the
question.
The idea at this point is to put together a request for
proposal and allow the private industry to use an existing
building so that there would be no money in new construction
other than perhaps what it would take to bring the facility up
to meet the heightened security and surveillance measures that
the Department of Health would put forward.
I want to reiterate what Mr. Coble has said in the
beginning. We worked with the industry and with the advocates
for a number of years to get to this point, and again, I think
the idea is to not use any taxpayer dollars necessarily or any
more additional money for sex offenders in need of long-term
care. Rather, we want to try to identify a situation that can
truly be a win-win situation, a win situation in reducing the
risk associated with a very vulnerable population of people who
are currently living in our nursing homes, and a win situation
for those individuals who have served their time of
incarceration, are registered sex offenders, may be prone to
reoffend and in need of long-term care.
Chairman Altmire. Thank you.
And on that same note, with the process Governor Henry
recently signed the bill and you have passed it and enacted it
now. Can you talk a little bit about any opposition that may
have come up? Were there advocacy groups or for some group on
the other side? What did you have to overcome as far as points
against the legislation as it was moving through the process?
Mr. Steele. Well, with an issue like this as much as
anything, it comes down to communication, and I think because
we have been working on this particular issue for a number of
years with people from the industry, people within the advocacy
groups, and really tried to take our time and understand and
communicate along the way, we have not experienced a whole lot
of opposition because people seem to understand what we are
trying to accomplish with this particular piece of legislation,
and it has been truly a bipartisan initiative.
I mean, without Governor Henry's help, without Senator
Adleson, who is a different party than myself, working and
working hard for this particular legislation in the Senate, it
would never have become a reality. But truly this is one of
those issues that transcends party politics. It transcends the
political minutia that sometimes we can get caught up with. It
is an issue that is truly about helping people, and we feel
like that we have at least come up with an idea that is a
beginning point for accomplishing that goal.
Chairman Altmire. Thank you.
I have no further questions. Congresswomen?
Ms. Fallin. Just a few more, Mr. Chairman.
If I could ask Ms. Banning, of all the recommendations that
you have heard today, being someone who has had to deal with
this personally, have you found these suggestions to be helpful
to protect a senior like your mother, or are there further
steps that we need to be taking?
Ms. Banning. This has probably been one of the most
exciting days I have had to hear these suggestions. Wes and I
have had dialogue over the last few years. He has told me
proposals. I have done research on my own.
My biggest concern, Ivy Edwards was found unfit to stand
trial, put in a mental institution, was released in 2005 back
into the nursing home. So he is out there again. He is 88 years
old. Just a measure to prevent that from happening.
A separate facility if these individuals are identified, a
floor of a facility, a wing of a facility, to let the
families--speaking as a family member, had I known that there
was someone that could have caused harm such as Ivy Edwards to
my mother, I would not have left her there for one day.
I think that the families deserve to know. They have a
right to know who is there. So background checks, a simple
background check was done in a matter of minutes the detective
told me and revealed the 59 arrests for Ivy Edwards, the last
arrest being my mother's. So letting the families know I think
is imperative for peace of mind if nothing else.
And having the staff know. We sued the nursing home. We
prevailed and got a judgment for negligence. They had no idea;
the jury had no idea of Ivy Edwards' background. It was the
behaviors that he exhibited while he was there. So I think if
the nursing home had known up front what type of individual
this was, I think that there would have been different measures
taken to protect those that are there.
Ms. Fallin. Are you saying that Ivy Edwards is back in a
long-term care facility?
Ms. Banning. The Attorney General for the State of Florida
told a news reporter, Kelly Garlock, that when she was doing
the investigation to find out if Ivy Edwards was still alive or
if he was still in Chattahoochi, she was told that he was
released in 2005, that he would never be competent to stand
trial, and he was released back into the nursing home industry
in the State of Florida.
Ms. Fallin. Have you had any contact with that long-term
care facility?
Ms. Banning. I have checked every one I can find. I cannot
find Ivy Edwards anywhere.
Ms. Fallin. Well, I hope you find him and you give them a
heads up.
Ms. Banning. I hope I do, too. Yes, ma'am.
Ms. Fallin. I think that will be very important.
If I could ask Representative Steele a couple more things,
my understanding from the GAO report and from just the limited
research that I have done, and you are the expert on this, but
the GAO report did not identify any similar federal law for
notifying facilities of sexual offenders like some of the
states have. I know states have varying degrees of laws of
notification on sexual offenders, but am I correct about that
or is there a federal law that mandates that facilities have to
be notified of sexual offenders or people who might be of harm
to the residents?
Mr. Steele. Congresswoman Fallin, it is my understanding
there is no such federal law currently on the books.
Ms. Fallin. Do you believe that a federal law would be
beneficial?
Mr. Steele. I do. I do think a federal law would be
beneficial in requiring nursing homes to perform background
checks on residents and also on all staff who may work within
that facility. But, again, I think we need to take into
consideration who pays for those background checks.
The thing that we want to do is not hinder business, but
rather help business, and I hope that what we have done in
Oklahoma is we have provided an alternative place for offenders
who need long-term care to go so that those businesses in
Oklahoma who primarily care for the general population do not
have a negative perception problem that their particular
facility is unsafe.
And I think that what we want to try to get to is the point
where family and loved ones and the residents themselves have a
peace of mind when they enter into a long-term care facility in
our nation.
Ms. Fallin. Well, following up on that cost, who did the
State of Oklahoma decide would pay that cost for notifying the
long-term care facilities?
Mr. Steele. In 2005, I believe it is currently the
responsibility of the nursing homes themselves, and that is an
issue that probably needs to be revisited, but as of right now,
it is incumbent upon the industry itself to provide those
background checks.
I will tell you at that time and I think still today, the
industry in Oklahoma is very willing to do whatever they can do
to make sure that they address a problem that may jeopardize
the safety of their residents, and so they kind of stepped
forward in 2005 and said, ``Hey, we believe this is the right
thing to do. We believe in it so much that we will go the extra
mile and we will actually pay for those background checks
ourselves in order to insure the safety of our citizens.''
Ms. Fallin. Mr. Coble, do you have any response to that?
Mr. Coble. Well, I just want to follow up on what
Representative Steele has said. We in Oklahoma, and I think I
can say this on behalf of the American Health Care Association,
we want no one in our facility who is a threat or a harm to any
resident, visitor or staff member, and also, the most important
thing is we want peace of mind.
I think Ms. Banning and what she was saying, families, we
need to put this to bed so that we can take care of the frail
elderly. I know we had a couple ladies who would call our house
in Oklahoma three years ago when this issue was on the
forefront being discussed, and they were worried. They lived in
our assisted living, and they would call my home, and my wife
would have to reassure them that we are doing the appropriate
things and that we are not going to do that.
But it is just a pressure on family members, and I am a
provider and a family member both, and so I want to insure that
everyone that we take care of is safe and we provide high
quality care.
Ms. Fallin. Mr. McDonough, do you think that having a stand
alone, separate facility and using the Medicare/Medicaid money
would be able to satisfy society's needs to provide for infirm
offenders as human beings? They do need to go somewhere. So is
this a good alternative for them?
Mr. McDonough. I believe that it is. I believe that is,
Congresswoman Fallin. When Mr. Bledsoe and I first began to
talk about the issue, that was one of the first questions that
came to mind. Well, in terms of basic human needs, regardless
of their past offenses against society, have to be taken care
of, particularly not so much in the case of Mr. Statham as a 31
year old who could have resided independently, but for some of
the elderly physicians, and I think mindful of Mr. Coble's
concerns, there will be a market, as it were, for the housing
of these individuals because they have to go somewhere.
And as I had said earlier, from the industry perspective of
managing risk, facilities that are willing to take these people
in at least will do so with their eyes open as to what they are
facing and what additional safeguards need to be implemented to
insure that these residents do not harm one another.
But I think clearly market forces would certainly dictate
that there is a place for these facilities in society and that
they can, indeed, be profitable. So I think it is an
appropriate alternative and a workable one at that.
Ms. Fallin. Mr. Chairman, that leads me to one last thought
here, and I promise this will be it.
If I could ask Representative Steele, you know, one of the
biggest concerns in discussing these types of facilities is how
do you pay for it, and so have you found in your studies that
by the use of Medicare/Medicaid funds and the ability of the
private sector market to adapt to be able to establish one of
these facilities that it can be paid for in a reasonable manner
for the State of Oklahoma or even the federal government?
Mr. Steele. Well, as I understand it, and I might want to
defer to Mr. Coble to make sure I have my statistics correct,
but about 70 percent of our nursing home population is Medicaid
eligible, Medicaid/Medicare eligible, and again, those are
entitlement programs, and so if a person is eligible, they
receive funding for those long-term care services regardless of
their criminal history.
And so ultimately it becomes a question of do we want to
house these individuals who are sex offenders and who qualify
for Medicaid or Medicare in with the general population or do
we want to house them in a separate facility, and they would
receive the funding no matter where we put them. It is just a
matter of where do we need to put them in order to provide the
protection that I think we are all in agreement here today that
needs to be provided for our general population.
And so I think that for the private sector, who is willing
to designate a facility to house offenders, they would receive
the funding just like they would if, say, that offender were
housed somewhere else in a home that was not a separate
facility.
Chairman Altmire. Thank you all for being here today. This
is a very difficult subject to discuss, and we welcome any
further feedback that you have to continue the discussion.
Mr. Steele, Mr. Bledsoe, Mr. McDonough, thank you for your
advocacy and your tireless work on behalf of the victims. Mr.
Coble, we realize that we put you in a very difficult position
today as a representative of the industry to discuss what the
industry has done while having to address the fact that some
have failed within the industry, and we realize that it was a
difficult position to put you in. Thank you for your testimony.
Ms. Banning, we certainly realize that it is very difficult
to discuss on the personal issue what has happened to you and
what happened to your mother, and we regret that we had to ask
you to come forward, but as Congresswoman Fallin said, we are
going to make something good come out of what happened, and we
just cannot thank you enough for being able to share the story
and under very difficult circumstances come before us. Thank
you.
Thank you to everybody.
I ask unanimous consent that members of this Committee will
have five days to submit statements and supporting materials
for the record, and without objection that is so ordered.
And we will conclude the hearing. Thank you.
[Whereupon, at 11:23 a.m., the Subcommittee hearing was
concluded.]