THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: FRIDAY, June 10, 1994 TAG: 9406100666
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY DEBRA GORDON, STAFF WRITER
DATELINE: 940610 LENGTH: Long
It's something Helen Manno told every nursing home she visited two years ago before placing 82-year-old John Jackobs in Marian Manor in Virginia Beach.
{REST} So she was shocked to receive a phone call one Sunday afternoon in mid-February, telling her she had to move her father immediately. He was wandering, walking unattended around the grounds, and Marian Manor could no longer guarantee his safety.
Manno was immediately suspicious of the timing. The nursing home had just hired a new administrator five weeks before, and her father's financial status was about to change. He had drained his savings to pay the $2,700-a-month nursing home bill, and now Medicaid would reimburse the home about $1,900 a month for the same level of care.
Moving her father from his familiar surroundings would, she knew, prove physically and emotionally devastating to the man. Social workers even had a term for it: transfer trauma.
So Manno decided to fight, taking her case through a labyrinth of state agencies that deal with nursing homes, running up a phone bill pages long, and filling a file cabinet with documents.
Last week, she won. For her father, the victory means he can remain in a place where he feels safe and secure.
But her fight has wider implications: It was the first test in Virginia of a year-old federal regulation that increases the rights of nursing home residents by granting them a formal hearing before the state Medical Assistance Services Department.
``Everyone kept investigating, but the discharge proceedings just kept on going on,'' said the Chesapeake woman. ``It was like a train coming down the track, and we just kept trying to stop it long enough for someone to listen to us.''
To Manno, the issue was simple: Marian Manor had promised it would care for her father as his health worsened. And, in the two years he had been there, he had declined significantly, moving from the independent living area on the third floor to a bed on the first floor.
By February, he was a frail yet distinguished-looking man, with his cardigan sweaters and neatly combed gray hair. He moved slowly and deliberately with the help of a metal walker.
But he could still move. And if he didn't get his daily walk, he was apt to just get up and take it himself.
To Marian Manor, that presented a problem. It was not designed to care for dementia patients who wandered, said its administrator, Irvin Land, in letters to Manno and during the medical services hearing in April.
Land said Jackobs had been ``located by the staff crawling on the ground outside in cold, rainy, weather conditions.''
But Manno said her father didn't wander aimlessly. He just wanted his daily walk. Besides, when the issue was brought up during conferences with his nurses and social worker, nothing was mentioned about discharge.
Instead, a detailed plan was outlined to prevent the wandering, which included taking him for regular walks.
But the February phone call panicked Manno. She had visions of the staff putting her father in a taxi and sending him to her house.
She set up a meeting with Land for Feb. 21 to discuss the issue. Three days before the meeting, however, she received an Airmail Express letter telling her Jackobs would be transferred on Feb. 21. Two days before the meeting, Land called and told her they wanted her father out by noon that day.
Feb. 21 was a holiday, but Manno, desperate to find some help, called the 800 number she'd copied off a nursing home bulletin board. It was for the state ombudsman's office, a division in the Department of Aging that investigates complaints on behalf of residents in long-term care facilities.
Although the office was closed, Manno just happened to catch assistant ombudsman Etta Butler Hopkins picking up some papers in her office. Hopkins agreed to visit the nursing home the next day.
After investigating, she said that the discharge was inappropriate since Jackobs didn't wander any more than any other resident at Marian Manor. The facility should provide the appropriate supervision, she said.
She also recommended that Manno hire an aide four hours a day to take her father for walks and sit with him, which Manno did. But it wasn't enough for nursing home administrators: they wanted her to hire someone for 16 hours a day, at a cost of $124 a day.
``So what's the point of having him in there?'' asked Mark Miller, the state ombudsman.
At that point, however, his hands were tied. His office could only make recommendations; it had no authority to enforce them and couldn't stop Marian Manor from discharging Jackobs at the end of the month.
So Manno appealed to the state Health Department, which regulates and licenses nursing homes.
Coincidentally, the Health Department was preparing for its annual, unannounced licensing survey of Marian Manor. As part of that visit on March 16, it investigated Manno's complaint, and found Marian Manor in violation of state regulations by trying to discharge Jackobs.
Still, the discharge proceedings continued.
Manno was fighting so hard, and was comfortable leaving her father in the nursing home during the fight, because she thought so highly of its staff. Everyone, from housekeeping to the director of nursing, treated her father with kindness and respect.
By now, Manno had found an attorney through Tidewater Legal Aid's Senior Law Center, Michelle Harris. She learned of the new appeal process to the medical assistance services board, available to every nursing home resident regardless of financial status.
Harris asked for a hearing.
In 1987, the federal government, reacting to media and public outcry about the condition of the nation's nursing homes, passed the Omnibus Reconciliation Act, which created massive changes in the way nursing homes are regulated and dramatically increased residents' rights.
Even though the law is seven years old, regulations are still being written. One of those regulations, dealing specifically with nursing home admissions and discharges, was implemented in January 1993.
It gave residents more rights regarding discharges, and put more responsibility on the nursing home to justify them. It also called for the creation of a formal hearing process if residents opposed the discharge, and in Virginia, the Medical Assistance Services Department was chosen to conduct those hearings because it already had a hearing division in place.
Manno didn't know any of this. She just knew that finally someone would hear her father's case.
The hearing on April 22 in Marian Manor's book-lined library had all the formality of a court proceeding. A court reporter took minutes; both sides had attorneys - Marian Manor's from the large, downtown law firm of Wilcox and Savage, Manno's from Legal Aid.
To everyone's surprise, it lasted nearly eight hours.
The nursing home insisted it couldn't guarantee Jackobs' safety; Manno insisted that if its staff took him for regular walks and/or installed some kind of alarm system on its doors, safety wouldn't be a problem.
It took another six weeks before Manno received the favorable verdict. In it, the hearing officer noted that Jackobs did not appear to wander, since he didn't move ``aimlessly.'' She questioned how such a frail man, whom the nursing home staff testified required total assistance and was checked every two hours, ``could elude staff, open steel fire doors and escape to Virginia Beach Boulevard without assistance.''
The officer also said the aide Manno hired was a duplication of services, and that Marian Manor should provide daily walks.
Land said Thursday that the nursing home staff would ``continue to care for Mr. Jackobs and his family with the utmost of compassion and quality.''
The victory is bittersweet for Manno. Her father's health continues to fail, and she doesn't know how long he'll be able to walk at all.
``The biggest feeling was hurt for him,'' she said, ``because our whole objective was to keep him where he was safe and where we felt would be the best for him.''
{KEYWORDS} NURSING HOMES NEGLECT LAW
by CNB