The story of elder abuse in Texas

Brian Collister, Joe Ellis and Josh Hinkle

It is a heart-wrenching decision many of us must face one day to trust someone to care for our aging loved ones. During the course of KXAN’s year-and-a-half-long investigation, the Texas agency watching over places like nursing homes and retirement communities admitted it made a mistake – even broke the law hundreds of times by failing to report residents’ allegations of sexual abuse to police. By sharing one woman’s story, KXAN sparked a new law to better protect your elderly family members in the future.

Part 1 – The Allegation

Guardianship. It is a term many families must eventually consider when memories begin to fade.

By 2011, Alzheimer’s disease and dementia had taken their toll on an elderly Austin woman. They were the reasons her family checked her into a place called Longhorn Village.

Located in an upscale subdivision on the edge of the rolling Hill Country, the assisted-living center promised “to preserve each person’s dignity by honoring his or her physical, emotional, intellectual, social and spiritual needs.”

The woman’s daughter – who did not want to reveal her identity due to the nature of this story – said it was a painful choice to make.

“It tears you up,” she said. “It's hard to watch that and know there's nothing you can do.”

A doctor and judge had recently ruled her mother – by then in her 70s – incapacitated – unable to make decisions for herself. They appointed a legal guardian, shortly before she began her stay at Longhorn Village.

But after only a few months of living there, her daughter says she noticed a change in the woman who was once so warm and engaging.

“(My mother) became more and more distraught,” she said. “She talked about wanting to move. She became more withdrawn and upset.”

The woman’s legal guardian and family claimed in a lawsuit filed against the facility that she was sexually assaulted twice in 2012 by a male resident described as a “sexual predator.” Claiming the Longhorn Village failed to protect the woman, the suit further alleged the man’s "sexual activities were known to the administration, but nothing was done to protect his victims.”

The woman’s family soon removed her from the facility, after seeing the decline in her emotional state and physical appearance.

“I'm just heartbroken,” she said. “She suffered a lot.”

But Longhorn Village denied any wrongdoing. Michael Little was the facility’s director of health care services at the time of the allegations. In a videotaped deposition, an attorney asked him about his staff’s obligation to residents.

He replied, "(It is) to ensure the prevention of abuse and neglect."

Little said he was unaware the woman had a legal guardian, even though Longhorn Village’s executive director, Deirdre Kinsey, admitted in a later court hearing that a copy of the guardianship order was indeed in her medical file.

When asked about the allegation, Little told the attorney, “Based on the information we had, we didn’t look at it as a sexual assault.” He also said the staff did not review the woman’s medical file at that time.

Little also said they did nothing to stop the male resident, who KXAN is not naming since he has not been charged with a crime.

Dr. Carmel Dyer with the Texas Elder Abuse and Mistreatment Institute said caretakers should always be aware when a guardianship order exists to fully evaluate such allegations, because that resident lacks the capability to make an informed choice.

“If a patient has been ruled incapacitated, they cannot participate in consensual sex,” Dyer said.

The lawsuit also claims Longhorn Village did not report the allegation to the state as required by law, even failing to notify the woman’s family.

Kathy Yesian, a former nurse at the facility, eventually reported the case to the Texas Department of Aging and Disability Services, which sent an inspector to investigate.

“We all knew her mental capacity was not one that could consent,” Yesian said in a videotaped deposition. “We all knew that.”

Longhorn Village fired Yesian and another employee. The two sued for retaliation, and the facility agreed to settle out of court without admitting wrongdoing.

Kinsey – the facility’s executive director – declined an interview with KXAN. In an email, she pointed out that the agency’s inspector ruled the complaint “unsubstantiated” and that no deficiencies were cited.

“Based on this thorough, independent investigation by the state regulator, Longhorn Village believes the…lawsuit is entirely without merit,” Kinsey wrote.

But KXAN uncovered the state’s investigation was far from thorough.

In a 2012 court hearing, that same state inspector admitted he did not see the guardianship order in the woman’s file, though it would not have impacted his investigation.

Part 2 – The Discovery

When KXAN first revealed this allegation a year ago, DADS had investigated a total of three abuse and neglect complaints at Longhorn Village. Inspectors found all three were unsubstantiated.

A further check revealed the agency had investigated about 17,000 such complaints in the last decade. Inspectors ruled nearly 90 percent of those unsubstantiated.

Those numbers led KXAN to thoroughly examine the agency’s legal requirements after initially receiving complaints. State law requires DADS must notify law enforcement within 24 hours so it can conduct a criminal investigation.

Because of KXAN’s questions, the Texas Health and Human Services Commission – which oversees DADS – launched its own investigation. HHSC reviewed the previous two years of abuse and neglect complaints made to the agency.

The internal review revealed the agency failed to follow the law in more than 1,500 cases – 78 percent of all complaints in that timeframe.

“It's unacceptable,” said Sen. Jane Nelson, R-Flower Mound, who authored legislation in 2011 that created the legal reporting requirement. “I want to find out… why it is not happening. I can pass legislation, but I expect that our state agencies will certainly abide by the laws that we pass.”

Shortly after Nelson’s concerns surfaced, DADS Commissioner Jon Weizenbaum sat down with KXAN and said agency leaders did a poor job communicating to inspectors their obligation to inform law enforcement.

“Once it came to our attention – once your investigation brought it to our attention – we took action,” Weizenbaum added.

DADS soon notified law enforcement departments across the state of cases it failed to report - even those where their own investigators substantiated claims of abuse, according to DADS reports.

Those included a resident at a Waxahachie facility "found deceased outside with severe burns on his arm.” In Bedford: "Due to facility neglect, the resident sustained a burn with a blister the size of a cantaloupe." And in Fort Worth, "staff failed to contact emergency services in a timely manner when (a) resident complained of having a heart attack. The resident died.”

“There's no question this was systemically an area where we fell down,” said Weizenbaum.

DADS may never know the exact reason the inspector who reviewed the Longhorn Village complaint failed to report the allegation to law enforcement or why he missed the guardianship order, because he died before the agency reopened the case.

Part 3 – The Change

After KXAN’s initial report aired last spring, one state lawmaker – an attorney who practices guardianship law – promised to help.

Rep. Elliott Naishtat, D-Austin, authored HB 1337, which requires nursing homes and assisted-living facilities to keep a resident’s guardianship order on file. It also requires state inspectors to check for that document before completing their investigation.

This month, Gov. Greg Abbott signed that bill into law, effective Sept. 1.

"Mistakes are made, and then they're corrected,” said Naishtat, who sits on both the Texas House Committees on Human Services and Public Health. “During the interim (before the next legislative session in 2017), we look at how this particular bill is being implemented… I promise you that (HHSC) will be following up on this and making sure that the new law is complied with."

Part of Naishtat’s confidence in that compliance likely rests in knowing who will soon be leading HHSC – someone he calls “a friend.”

In recent months, the agency and its subsets were heavily criticized for mismanagement, contracts concerns, child abuse investigations, not to mention the problems pointed out by KXAN. Its embattled executive commissioner announced he would step down in July, and the governor has already appointed his replacement - former DADS Commissioner Chris Traylor.

“I guarantee you he will be looking closely at this in terms of making sure the law is implemented and enforced," said Naishtat.

Conclusion – The Future

Longhorn Village attorneys tried to subpoena video, interviews and documents KXAN had gathered during the course of this investigation – materials specifically related to the lawsuit filed by the family of the woman who once lived there.

KXAN – through its attorneys – objected, citing the Free Flow of Information Act, which protects news organizations. KXAN also informed Longhorn Village it was not legally entitled to the items requested and that the station would seek to recover legal fees and other expenses if the subpoenas moved forward.

In his order granting sanctions, Travis County Probate Judge Guy Herman wrote that Longhorn Village’s actions were “unreasonably frivolous, oppressive and harassing because (it) did not have justifiable grounds to overcome the privilege afforded to KXAN by the Shield Law by clear and specific evidence.”

Longhorn Village also settled its suit with the family in this story. But the woman’s daughter is still “frustrated and disappointed” with what remains unresolved.

The elderly male resident was still living at Longhorn Village when KXAN began its investigation – two years after the allegation against him. On the phone with KXAN, the man denied an assault ever happened.

“It's just hard to imagine there'd be that kind of callous approach to someone's care and their responsibility,” the woman said of the facility’s response.

But while the system initially failed, law enforcement is now aware of this case. As a direct result of KXAN’s reporting, it is currently in the hands of the Travis County District Attorney.

Getting Help

If you suspect abuse or neglect of a loved one in a nursing home or assisted living facility, state law requires you to notify your local law enforcement and the Texas Department of Aging and Disability Services. DADS has 24-hour hotline you can call, 1-800-458-9858.