Nurse aides let back into jobs despite ban

His brown eyes focused. The 52-year-old man began to spell out a word, one letter at a time, as the police officer watched.

M-O-

A stroke had left the McAllen father of three so severely paralyzed he could only move his eyes. A speech pathologist taught him to pick out images and letters from a message board.

That's how he was able to tell them, though his wife had already noticed the changes. He no longer wanted bathing. He was crying.

He finished spelling the word: Molested.

No one at the nursing home knew that the aide bathing the man had a criminal conviction.

And it wouldn't have mattered if anyone had.

The tales found in the Texas Department of Aging and Disability Service's disciplinary files can be savage, sad and stomach-turning. But they are intended to serve an essential purpose: protecting Texas grandparents, disabled children and the terminally ill from abusive or dishonest nurse aides and other caregivers.

But dangerous blind spots plague the system that oversees them, a Star-Telegram examination has found. Across the state, caregivers facing discipline for sexual misconduct, theft, abuse -- and a fatal case of neglect -- were all able to find and hold new jobs.

Consider this: The department has banned about 680 people -- for life -- from working at any of the facilities it regulates. Yet every two years, the department renews the certifications of some of those same workers as nurse aides. One San Antonio aide, blacklisted for stealing an elderly man's identity in 2005, has a new certification good through 2009. A Lubbock aide banned for swindling an elderly woman out of more than $100,000 works for a healthcare staffing company and insists she's not caring for patients -- "We do billing," she said. Another, banned for neglect, was fired from a Plano nursing home only after the Star-Telegram questioned her status in August.

Just how do those workers keep getting recertified? All the state requires for renewal is evidence that an aide is still working.

So if a blacklisted aide continues to hold a job and sends that evidence to the state, no one checks to see whether they should be working before issuing the renewal.

C. Lynette Sanders, a program specialist for the state's professional credentialing enforcement, said she was surprised to learn of what she called aides "slipping through the cracks."

"I don't like hearing that at all," she said, adding, "I know no system is perfect."

Sanders said most problems found by the Star-Telegram are isolated cases. As long as nursing homes and other long-term-care facilities do their jobs, she said, there's no problem.

But the state gives the task of screening the 118,000 active nurse aides it certifies to an industry that routinely fails to follow the rules. In turn, the department disciplines few -- a total of 244 nurse aides in the past three years.

By comparison, the Texas Medical Board licenses about half as many physicians and disciplined 335 in fiscal year 2006 alone. That means doctors are about eight times more likely to be disciplined each year than are nurse aides.

Told of the disciplinary statistics, Catherine Hawes, a professor at the Texas A&M School of Rural Public Health in College Station and an expert on the nursing home industry, responded, "Holy mackerel."

"You either have to assume we don't have a very effective system," she said, "or it's tremendously effective and we've driven out of the business anyone who would be abusive to residents."

Banned, then recertified

The allegation was clear-cut. While caring for a Lubbock senior with memory problems, Denise McNeely and another woman hoodwinked her out of about $119,000.

The discipline was muddled. Department officials blacklisted McNeely in 2005 by adding her name to the Employee Misconduct Registry. But four months after her lifetime ban was official, McNeely still worked "as a nurse aide and performed nursing/nursing related services," according to the state's files.

When Department of Aging officials received confirmation that McNeely was working, they took swift action: The state renewed her nurse aide certification for another two years.

Aides can slip through the cracks because the department relies on two lists to keep banned workers away from vulnerable residents.

One list, the Employee Misconduct Registry, was created by the Legislature in 1999. It tracks about 680 caregivers the department doesn't certify but wants kept out of state-regulated facilities. Before its creation, there were few controls on uncertified workers, Sanders said.

The other list is the Texas Nurse Aide Registry. Primarily a database of all nurse aides, it tracks those aides who have had their certifications revoked.

The registry is governed by federal regulations. States have the option of imposing stricter requirements, federal officials said.

But department officials don't cross-check the names from one list against the other.

Since July 2005, McNeely has been "unemployable," according to the misconduct registry. Yet the nurse aide registry shows her certification is active through November and contains no record of mistreating residents.

"If you're [listed] on either one of those registries as unemployable, then you're unemployable, period," Sanders said.

The job of checking the lists is left to nursing homes and other facilities. Employers can consult a sanctions database online, but verification requires the aide's Social Security number and a phone call to the state.

And nurse aides sometimes work for employers that aren't required to check the lists. The department doesn't regulate doctors' offices, hospitals and private staffing companies, Sanders said.

Among the aides blacklisted by the department, then recertified anyway, are:

A Plano aide accused of failing to perform CPR when a resident stopped breathing. The resident died.

A San Antonio aide accused of using a resident's identity to open credit card and checking accounts to pay Rent-A-Center, Pizza Hut and her electric bill.

A Georgetown nurse aide accused of frightening a blind resident by slapping his hand.

A Grapeland aide accused of neglect because she told no one that a resident fell.

In interviews and in state documents, the banned workers in most cases said they didn't commit the acts of misconduct that got them barred.

Kim Hannan, administrator of Life Care Center of Plano, fired the nurse aide who allegedly failed to perform CPR at a previous job after the Star-Telegram asked about the aide.

Sophia Hassan, who could not be reached for comment, was placed on the misconduct registry in March 2004, according to department records. Four months later, she was recertified as a nurse aide -- by the same agency.

Life Care Center hired Hassan in July 2005.

"All my documentation showed she was in good standing," Hannan said.

Hannan called the department's Employee Misconduct Registry after the newspaper asked about the aide

"According to them, it did say she's not employable in a facility that is licensed by DADS," Hannan said.

Then Hannan rechecked the nurse aide registry. "They said, yes, she was active and in good standing," Hannan said.

Hannan said she would probably check all the other aides who work at the facility to make sure "something hasn't occurred since their employment."

"That was an eye-opener for me, I mean, to say the least," she said.

McNeely, able to keep her certification despite being banned for exploiting a senior in her care, said she's no longer caring for the elderly. She works at a staffing company now. "There's no old people in this building at all. We do billing. We answer phones."

McNeely, who disputes the claim against her, said she lacked the money to appeal the state's decision to place her on the misconduct registry.

She also said police were not involved in the case, but Lubbock police said she and a registered nurse, Sheree Oglesby, received deferred adjudication. Oglesby did not respond to a message seeking comment.

Carrol Scott, the stepson of the woman McNeely allegedly stole from, said McNeely pays about $615 a month in restitution.

Working while accused

In March 2004, a worker named Baines Wango made the rounds at Esperanza Children's Center in Austin, checking three disabled girls' diapers for wetness.

The task should have been easy, since the girls wore briefs that changed color when wet. But two witnesses instead said they saw him looking around the room as he placed his ungloved hand down the front of the girls' diapers, according to state documents.

The Department of Aging concluded he had engaged in sexual misconduct and referred him to the Employee Misconduct Registry. He appealed. He wouldn't be added to the registry for 17 months -- then his name slipped off the list anyway.

In between, in March 2005, a 78-year-old woman said she awoke at another Austin area home to find a male worker with his hand inside her diaper. Police were given the suspected worker's name: Baines Wango.

Even when the Department of Aging concludes abuse happened, appeals can drag on for months.

In most cases, state officials are powerless under state law to suspend workers accused of brazen acts of violence or sexual misconduct while their cases are pending.

During that time, nursing homes are in the dark, because there is no information about the case on the state's registries.

"I know there are cases where a nurse aide or even unlicensed individuals commit an act of misconduct at a facility and, while they're in the middle of due process, they get a job at another facility," Sanders said.

In 1998, for instance, an Arlington nurse aide left one resident with black eyes and bruises on her arms and legs. He was accused after he had been fired for abuse a month before from a nearby nursing home. A state official said at that time that no action could be taken against the employee until the appeal deadlines had expired.

In a sample of cases reviewed by the Star-Telegram, appeals by both uncertified workers and nurse aides took from as little as three months to well over a year.

U.S. Government Accountability Office reports in 2002, 2005 and again this year have raised concerns about the lag time, noting that "residents may continue to be exposed to aides who are allegedly abusive."

Workers' deadlines for appeals are set by the federal Centers for Medicare and Medicaid Services, known as CMS. The agency has acknowledged that considerable time can elapse before abusive aides are listed on the registry. CMS officials said they would consider changing the deadlines, but there have been no changes.

Despite that, local CMS officials expressed confidence in the "current timelines for ensuring abuse reporting in Texas [to the] nurse aide registry," according to an e-mail sent by spokesman Tony Salters.

In 2005, another report -- by the inspector general for the U.S. Department of Health and Human Services -- raised concerns about how quickly states including Texas updated registries with information about banned workers.

The report found, for instance, that a Texas aide poured milk on a resident's head, pushed him into his wheelchair, grabbed his arms and hit him on the head, leaving him bruised, with torn skin.

But the state left the aide's revocation off the registry, meaning that the aide could continue to find work.

Department officials said the responsibility for keeping the registry up to date is now consolidated under a single employee to provide "increased accountability."

Local CMS officials said facilities are also expected to seek references from applicants' previous employers to catch workers not on either list.

But administrators are reluctant to pass along negative information for fear of lawsuits, several said.

Terrie Brummett, administrator of Parkwood Healthcare Community in Bedford, said she always checks references before hiring someone.

"Granted, a lot of people, because of lawsuits and different things, have to be careful what they say about employment," she said. "Just like us: I don't give out anything but date of hire and date of employment."

But she added that if a person has been in the "business very long, you know people who will tell you the truth" about a worker.

A judge dismissed Wango's sexual-misconduct appeal in October 2005. His name was added to the Employee Misconduct Registry two months later. But in June 2006, during a review of the registry, department officials couldn't find his name there.

"It was noted that Mr. Wango's upheld finding was not in the database, apparently due to a data processing error," department officials said in an e-mail to the Star-Telegram.

"The finding was again entered into the database on 6/21/2006 following this review."

State officials noted that the 2005 allegation against Wango came while he was still in his appeal process. Department misconduct files contain no information about the accusation.

During the same time period, Wango was certified as a certified nurse aide "because no findings were listed on the" nurse aide registry, state officials said.

Wango, who now lives in Georgia, adamantly denied any wrongdoing, saying the 2004 incident was a "frame-up" and the 2005 incident involved an "old, old woman who had one leg."

"Nobody could think somebody like me could fondle that old woman," said Wango, 62.

Wango said he no longer works in healthcare, and law enforcement records show that he was never arrested or charged in connection with the allegations.

Few requirements

In McAllen, in 2005, the paralyzed man's wife could see her husband crying. She just couldn't understand why.

She had to guess at the right question to ask.

Are you not comfortable -- do you want to be turned? He closed his eyes, meaning "no."

Is something wrong? Looking up, he signaled "yes."

Then he began working with a speech pathologist. Within a week, he chose the images for frustrated, angry, enraged. He was abused, he told the pathologist.

In time, the man and his family learned that the aide bathing him had been accused of masturbating in front of an undercover McAllen police officer at a public park and had pleaded guilty to indecent exposure. He had been hired in September 2003, with a clean record. The arrest occurred in January 2004; the nursing home did not know.

Unlike agencies that monitor other professional caregivers, the Department of Aging doesn't screen nurse aides for criminal convictions before or after they are certified. Several state officials say they don't because they are not required to do so under federal law.

Nursing homes and other facilities are depended upon to screen applicants. In contrast, other agencies, such as the Texas Board of Dental Examiners, recheck licensees' records periodically for convictions.

In February, the department sent a bulletin to nursing homes and other facilities noting that criminal convictions won't keep someone from being certified -- even if state law prohibits that same person from working in a nursing home or other regulated facility. Crimes barring employment include murder, rape, kidnapping, aggravated robbery and arson. For that reason, department enforcement officials say they are powerless to act in the face of a criminal conviction.

Nursing homes screen employees for convictions only before employment. Under state rules, unless a certified nurse aide takes a new job, there's no requirement that criminal history ever be checked again.

And nursing homes are only required to check criminal convictions in Texas, not other states. Congress is weighing a bill that could help create a national background check system for nursing home workers.

At a recent hearing of the U.S. Senate Committee on Aging, Chairman Herb Kohl, D-Wis., described a "patchwork system of background checks" that is insufficient to protect nursing home residents.

Susan Farris, who oversees the James L. West Alzheimer Center in Fort Worth and is a member of the state's Nursing Facility Administrators Advisory Committee, said she assumed that nurse aides underwent a criminal background check by the state before being certified.

Even though regulations don't require it, Farris said she requires nurse aides and other workers to be rescreened every year. Farris added that she also requires workers to be rechecked against the Employee Misconduct Registry.

In McAllen, the paralyzed man's wife said that she was angry to learn of the aide's arrest and that nursing home officials, despite their training and expertise, never bothered to recheck his record after hiring him.

"They go to college, they go to all these places, but they didn't they have the decency to check his background?" she said.

She said she was glad that the aide, Heraclio Olmedo, lost his job and his certification was revoked. Olmedo, who fought the revocation and denied doing anything improper, could not be reached for comment.

Oralia Lenny, the home's former director of nurses, said that even if she had known about the conviction, she might not have fired him.

Under state regulations, that would have been OK.

A law took effect at the beginning of the month that now bars workers convicted of crimes including indecent exposure from working in long-term care.

That wouldn't make a difference in cases such as Olmedo's, though. Current employees' criminal histories won't have to be rechecked.

Inside the care facilities

Tarrant County nursing homes

In the past three years, at least 4 out of every 10 Tarrant County nursing homes have run afoul of the state for hiring people they shouldn't have or for inadequately investigating residents' injuries, according to a Star-Telegram analysis.

Unexplained injuries

In Grapevine, Arlington and Bedford this year, unexplained bruises, skin tears, broken bones and a gash on a resident's forehead requiring 10 stitches were not reportered or weren't fully investigated, according to inspection reports.

Making the call

In some abuse investigations, there's no physical evidence and residents are unable to communicate. "In some cases, it is simply a guess about whether it happened or not," said Susan Farris, administrator of the James L. West Alzheimer Center in Fort Worth.

Federal probe

In 2005, three Austin-area nurse aides told federal inspectors that they had faced accusation of abuse or neglect, including a nurse aide who struck a resident and another who told an interviewer "sometime I don't know my own strength." But inspectors found no records documenting any of the allegations.

Oversight

The Texas Department of Aging and Disability Services regulates about 64 Tarrant County nursing homes that receive Medicare or Medicaid funding.

About the project

The Star-Telegram examined state misconduct files and matched them against nurse aides listed in the Texas Nurse Aide Registry. In some cases, apparent matches were confirmed using nurse aides dates of births or through interviews. Other potential matches were discarded because the Texas Department of Family and Protective Services, citing public information law, refused to release details about accused workers.