August 21, 2010 | Christina Jewett
Ana P. Gutierrez/Orange County RegisterJosefina Herrera, a Los Angeles County public health nurse, went undercover for the attorney general’s office to investigate a nursing home owner who tried to bribe her.
The office of Attorney General Jerry Brown has dismissed an increasing number of criminal cases against defendants suspected of elder abuse, while cutting back on surprise inspections to investigate violence and neglect in nursing homes.
A California Watch review of elder abuse prosecutions found Brown’s office in sharp contrast with his predecessor, Bill Lockyer, who made similar cases a top priority during his two terms. In addition to dismissing abuse prosecutions already in motion, Brown’s office has filed fewer new cases per year than Lockyer’s office.
The review of data from the California Department of Justice shows that the unit prosecuting elder abuse enjoyed steady budget increases in recent years. But despite this:
* Civil and criminal elder abuse prosecutions fell about one-third under Brown. Lockyer filed 162, 131 and 111 civil and criminal cases during his three peak years of prosecuting such cases. During the two full years that data is available for Brown, his office filed 75 and 89 cases. The decline in filings comes as prosecutors are increasingly changing course and dropping charges against those accused of harming seniors.
* The office has scaled back surprise nursing home inspections in the Department of Justice’s Operation Guardians program, from 92 probes in 2006 to 19 last year. These inspections have proven to be an important tool in identifying elder abuse.
* Brown’s office has cut back on elder abuse training for the state’s ombudsmen, police and district attorneys. The office used to hold four-day training summits every two years, but has not held one for three years and has no immediate plans to provide such training.
Brown, the Democratic nominee for governor, declined to comment for this report. Top officials in his office say there has been no conscious effort to diminish elder abuse cases under his administration.
“Everybody here cares very much about treatment of elders,” said Mark Geiger, who heads the Bureau of Medi-Cal Fraud & Elder Abuse within the attorney general’s office. “I have never seen anybody not do the right thing.”
Instead, Brown’s lieutenants say that past success in prosecuting nursing homes may be deterring the kind of abuses they saw in prior years. The office has seen a marked drop in reports of physical abuse and significantly fewer referrals from local ombudsmen, law enforcement and the public.
The office also has seen an uptick in financial fraud cases and has applied more resources to prosecute health care providers who scam Medi-Cal, California’s medical insurance program for the needy.
In addition to stepping up fraud efforts, Brown’s office has emphasized other priorities, delving into new arenas in environmental law, consumer protection and DNA analysis.
But as the 65-and-older population skyrockets in California and elsewhere, advocates for seniors and the elderly are troubled by the reduction in elder abuse prosecutions.
“One of our concerns is that if these cases aren’t prosecuted, it resets the tolerance for abusive behavior,” said Leslie Morrison, an attorney and director of the investigations unit at Disability Rights California. “The perpetrators are able to slip through cracks and victimize other people.”
Cases like Marlene Z. Robertson’s illustrate the differences from one Democratic administration to the next. Robertson was prosecuted under Lockyer, but saw the criminal case against her dismissed under Brown.
Lockyer’s office had accused Robertson of bribing a health inspector in return for advance warning about inspections of Huntington Healthcare Center in Los Angeles.
“I could not forget what I saw,” the public health inspector, Josefina Herrera, said in an interview. “It did not look like a skilled nursing facility. It looked like a warehouse for zombies.”
Inspection reports before and after the arrest documented chaos and filth at the home. Patients with uncontrolled psychiatric conditions threw furniture and threatened to kill others. One resident bloodied an 82-year-old woman’s nose, state citation records show. Pigeon droppings littered the dining room and rodent feces polluted the pantry.
After her September 2005 inspection, Herrera told Robertson that the facility would be facing additional scrutiny. Later, though, one of Robertson’s employees brought Herrera a Christmas card containing five $100 bills, according to court records.
Herrera turned to an investigator for the attorney general’s office, who asked her to go undercover. Soon, Herrera was nervously passing hours with Robertson, wearing a wire and making trips to the bathroom to place hushed calls to investigators.
Within months, Herrera collected about $7,000 in exchange for “consulting” work for Robertson. Herrera’s undercover work led Lockyer’s office to charge the nursing home owner with 12 counts of bribery and conspiracy. Lockyer, who declined to comment for this report, declared at the time that it was one of the “most disturbing” cases he’d seen.
But earlier this year, after nearly five years of investigation and prosecution, the Department of Justice dismissed all felony counts against Robertson.
“All that work going down the drain,” Herrera said.
Robertson did not return calls or respond to a letter seeking comment, and her attorney declined to speak to California Watch.
Alan Robison, a deputy attorney general who worked on part of the Robertson case, said the case was dismissed after a pretrial hearing opened new lines of attack for defense attorneys, who also contended that prosecutors did not prove Robertson had “corrupt intent” to bribe. Prosecutors were not convinced they could make their case at trial.
Additionally, Brown’s office reached a civil settlement that is expected to drive quality improvements at Robertson’s nursing homes. Her business was fined $100,000, and state licensing authorities had already forced her to sell Huntington Healthcare.
Robison also said that attorneys are overseeing a civil injunction that allows for close monitoring of Robertson’s remaining nursing homes, Golden Cross Health Care in Pasadena and Cloverleaf Healthcare Center in Hemet.
Yet, a conclusion to the Robertson case without criminal charges outraged Patricia McGinnis, executive director of California Advocates for Nursing Home Reform.
“This is a slap on the wrist, to say the least,” she said. “Where is the justice for the residents who were neglected and abused?”
Fighting fraud proves lucrative
A decade ago, when Lockyer began his first term, he swiftly added 20 attorneys and investigators to work on elder abuse cases, doubling the size of the unit. He launched a $6 million media campaign and supported unprecedented cases accusing nursing home companies of crimes.
Robison, a supervising attorney with the Bureau of Medi-Cal Fraud & Elder Abuse since 2000, prosecuted two of the state’s largest chains, Sun Healthcare Group and Pleasant Care, ultimately driving the latter out of business.
The office is still examining nursing homes from top to bottom, he said. But attorneys have not found sufficient facts to pursue such sweeping cases under Brown.
“It’s not for a lack of trying,” Robison said, “and not because someone in the administration was pouring water on it.”
James Humes, Brown’s second-in-command, said attorneys throughout the agency defend seniors, from going after unscrupulous contractors and backing up public health inspectors who cite nursing homes.
“I feel really proud of the work we do in elder abuse, throughout the office,” he said.
The California Watch review focused on work performed by the attorney general’s Bureau of Medi-Cal Fraud & Elder Abuse, which is headed by Geiger. He attributed the decline in elder abuse prosecutions to the steep drop-off in incident reports from police and local ombudsman offices, complaints that often get cases rolling.
The shift also has come as Geiger invested more of the unit’s resources in its other mission: prosecuting those who defraud Medi-Cal.
The unit’s budget grew from $30.5 million in 2007 to $35.8 million this year, with three-quarters of the funding coming from the federal government. Geiger used additional funds to press cases against clinics, drug vendors and doctors accused of bilking Medi-Cal.
The increased focus on fraud has paid off, bringing $220 million back to taxpayers in 2009, Geiger said. Still, Brown’s most fruitful year in prosecuting fraud cases doesn’t top the $260 million in fraud paybacks netted under Lockyer during his biggest year, 2005-06.
When Brown’s office dismissed the bribery charges against Robertson earlier this year, she was one of a growing number of elder abuse defendants relieved of all charges. The office dropped charges against 13 defendants in 2008, in cases it prosecuted alone or in partnership with local or federal prosecutors. That number nearly doubled to 25 dropped cases the next year and rose to 33 during a reporting period that ended in March.
Prosecutors expect to drop charges against 35 people accused of elder abuse next year, even though lawyers in the attorney general’s office only project to file 50 new criminal cases, according to a report filed with federal funders.
To Carole Herman, an advocate for victims of elder abuse, the decisions are out of step with public sentiment – and particularly that of juries that recently hit nursing home chains with sweeping judgments. In May, a Sacramento jury handed down $28 million in damages in a bedsore case after a patient died. A Humboldt County jury in July levied a record $671 million in damages in an understaffing case.
“These are the people who built this country and kept us free,” said Herman, who runs the Foundation Aiding The Elderly.
Deputy attorneys general acknowledge that their pace has slowed but say other factors have limited the pool of potential cases. The elder abuse unit under Brown saw case referrals from local agencies and eldercare ombudsmen drop from more than 2,300 in 2003 to 745 in 2009.
Humes said the decline reflects a drop in crime statewide. Another top prosecutor said increased awareness of mandated reporting laws might result in more abuse being resolved by local authorities, who are the first to receive such reports.
Officials also attribute the decline in referrals to budget cuts hitting all corners of the state, particularly the Department of Aging elder care ombudsman program, which saw deep budget shortfalls in recent years.
That program also is sending increasingly vague reports to prosecutors, said Steve Muni, a deputy attorney general who reviews cases referred to the elder abuse unit.
Muni said the Department of Aging has in recent years refused to reveal the names of alleged abuse victims without their consent, sending prosecutors reports with victims’ names blacked out. The Department of Aging contends this confidentiality is required under the federal Older Americans Act of 1965.
Geiger said he plans to work with legislative staff to see if changing state law could allow prosecutors easier access to the names of abuse victims.
To some degree, though, the attorney general’s office made choices that cut off its access to case leads, records and interviews show.
For three years, the office has not held formal statewide elder abuse training, leaving some local advocates and law enforcers ill-equipped to identify, investigate and draw attention to problems, according to Morrison, of Disability Rights California. And a drastic cutback in the Operation Guardians nursing home inspections eliminated a fruitful source of cases.
During the Operation Guardians inspections, a nurse, doctor, investigator and auditor arrived unannounced at a nursing home, sometimes before 7 a.m. They would examine recent patient deaths and wound care. They also would watch staff give meals and medication to residents.
Dane Gillette, chief of the attorney general’s criminal division, said cutting annual inspections from 92 to 19 has focused dwindling funds on real cases rather than potential ones.
Meanwhile, though, Geiger has overseen an increase in activity in the elder abuse unit’s other main duty, fighting health provider fraud. His bureau is increasingly teaming with a federal Medicare fraud task force to stem waste in the public-pay health programs. Under Brown, the office has increased Medi-Cal fraud filings, from 313 in Lockyer’s last full year in office to 524 for Brown in the fiscal year ending in 2009.
And prosecutors have pursued cases brought by whistleblowers to recover millions from pharmaceutical companies. Those firms have been accused of overcharging for drugs in cases that cut across multiple states.
‘Worst of the worst’
The attorney general’s office did pursue one case that elder advocates deemed shocking. But the penalty that followed, some say, was underwhelming.
For two days in September 2008, the attorney general’s Medi-Cal Fraud & Elder Abuse team swept through a 177-bed Sacramento nursing home. It seized the medical records of five deceased patients who an expert physician and state regulators believed would have survived longer with better care.
An attorney general investigator alleged in an application for the search warrant that felony elder abuse had taken place at Arden Rehabilitation and Health Center.
One patient, Elisabeth Silco, grimaced when care workers touched her blackened, leathery and gangrene-ravaged foot, a state citation report shows. The 89-year-old had broken her ankle while at Arden, and workers went days without tending to the fracture.
Staff put Silco in a room with a comatose patient and pointed a fan at her foot to reduce the stench of dead tissue, court records say.
“That was just outside the bounds of the worst of the worst,” said Dr. Kathryn Locatell, a Sacramento physician who saw patients at the facility and served as an expert for the attorney general on the matter. “I was truly sickened by what happened to that poor woman. It was inexcusable.”
The attorney general’s office reached a civil settlement with Arden, levying a $350,000 fine and entering into a supervision agreement with that facility and seven others under the same ownership. The fine accounts for less than 1 percent of the $40.8 million in Medi-Cal funding to those facilities in 2008, state data shows.
“It’s nothing, as far as I’m concerned,” said Joan Parks, manager of Ombudsman Services of Northern California, a group that advocates for seniors in 13 counties.
Arden’s current administrator declined to comment for this report. The facility’s attorney said he was pleased with the ultimate resolution.
“Given the seriousness of the search warrant, we were certainly hopeful that we’d be able to work it out with the attorney general, and we did,” said Sacramento attorney James Geary.
Gillette, chief of the criminal division, said the office sometimes opts to file such civil injunctions to “get control of the facility and protect the seniors that are there.”
“We can monitor on a much closer basis once that’s in place,” he said.
Closed case gets second look
One case that California Watch inquired about set off a flurry of activity in the attorney general’s office.
According to public records, three certified nursing assistants at Valley View Skilled Nursing Center in Ukiah took on a “gang mentality.” They targeted five patients, abusing them, harassing them and leaving one in fear for his life.
The attorney general’s elder care unit received reports of the alleged abuse days after an official from the facility alerted public health officials about the incidents in March 2007.
But the unit referred the case to local law enforcement, which declined assistance from the attorney general’s office and filed no charges, said Robison, a supervising prosecutor.
When asked by California Watch in June about the attorney general’s handling of the matter, Robison requested an 80-page police report. He quickly assigned an investigator and attorney to re-open the case.
On Aug. 11, the office arrested William Esenbock, 26, in Mendocino County on six misdemeanor counts of elder abuse.
Prosecutors allege that Esenbock walked a patient from the shower sopping wet and naked, pinched a male patient’s nipple and took a photo of an elderly woman’s bare torso and showed it to co-workers.
Esenbock is also accused of startling a resident awake, recording the man’s reaction on his cell phone and showing that to co-workers.
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