In two separate incidents this summer, someone with a disability was left inside a hot van for hours. Both incidents resulted in some injury, but there were different consequences for the people responsible.
By Taylor Sisk
Two closed vans on two hot summer days. Two adults with special needs, forgotten for hours. Two state-licensed agencies in charge of their care. Different outcomes, different determinations regarding neglect – and a call for more consistency in how such incidents are addressed.
On June 20, a 70-year-old wheelchair-bound woman with dementia was inadvertently left in a van for more than six hours. The woman, a client of the Elderhaus PACE day adult-care facility in Wilmington, was treated for dehydration and spent several days in the hospital.
The driver of the van was charged with criminal abuse. Elderhaus PACE – which stands for Program of All-Inclusive Care for the Elderly – was cited for nine violations by the New Hanover County Department of Social Services. The state Department of Health and Human Services also took action.
On July 5, a 35-year-old resident of an Apex group home was likewise left in a van for more than six hours. The man, who has autism, was supposed to be out on a work assignment. He wasn’t found until the end of the workday. He was taken to a hospital, where he was treated for heat stroke and released.
No charges were filed and no violations cited.
High temperatures for the day in both cases were in the 80s, but the temperatures inside the closed vans reached above 100 degrees.
Same problem, different result
Vicki Smith, executive director of Disability Rights North Carolina, said that a critical factor in why charges were brought in the one case but not in the other was the difference – or at least perceived difference – in degree of physical harm suffered by the individuals.
“That’s a critical factor from the point of view of law enforcement,” she said.
But, Smith said, “the neglect is the same. They were both left by their caretakers in vehicles.”
She believes those laws need to be re-examined. Smith also said she’s concerned that there are inconsistencies in how the laws are interpreted by the different state agencies tasked with monitoring facilities that care for North Carolinians with mental health, developmental disability and substance-abuse issues.
DHHS’s Division of Aging and Adult Services (DAAS) is responsible for the Elderhaus facility, while the Division of Health Service Regulation (also part of DHHS) oversees the group home.
Too many agencies are allowed to operate with obvious deficiencies that put their clients in jeopardy, she said. “That’s what surprises us.”
Smith believes there should be more diligent oversight.
State statutes apply
N.C. General Statute 14-32.3, “Domestic abuse, neglect, and exploitation of disabled or elder adults,” addresses day adult-care facilities. The statute states that a caretaker of a person with a disability or an elder adult is guilty of neglect if he or she “wantonly, recklessly, or with gross carelessness” confines or restrains a person “in a place or under a condition that is unsafe” causing mental or physical injury.
The driver of the Elderhaus van in question was terminated after the June incident.
As for sanctions against the operators of the Elderhaus facility, in addition to the nine violations cited by New Hanover County social services, the state took corrective measures.
At the time of the June incident, Elderhaus PACE was due for state recertification and because the operators had not submitted a complete recertification application to the state, DAAS issued them a provisional certification. The provisional status is in place from Aug. 1 to Oct. 31.
According to Julie Henry, assistant director of the DHHS Office of Communications, funding for the PACE program comes from the state Division of Medical Assistance, which requests a “root-cause analysis” from providers when a violation is cited.
That analysis is also submitted to the federal Centers for Medicare & Medicaid Services (CMS).
“Based on the analysis, CMS has approved our recommendation that Elderhaus suspend new enrollment in the PACE program until the program regains full certification status from DAAS,” Henry said.
In the Apex incident in July, N.C. General Statute 14-32.2, “Patient abuse and neglect,” was applicable. Under that statute, a felony has been committed if the violation indicates a pattern of abuse or neglect or if the conduct is “willful or culpably negligent” and results in serious bodily injury or death.
Wake County Assistant District Attorney Patrick Latour called the neglect an “incident of bad judgment” on the part of the operators of the Mason Street Group Home, but said no criminal charges were warranted.
According to Henry, a complaint was filed against the group home as a result of the incident and the Division of Health Service Regulation conducted an investigation.
“No deficiencies were found in the facility,” Henry said.
Smith said that while the media attention on these two incidents has focused largely on the drivers of the vans, “it’s much broader than that.”
“There was a systemic failure here,” she said. The only reason charges weren’t filed in Wake County, she said, was because the man wasn’t considered to have been seriously injured.
Smith said there is also need for diligent scrutiny of all such agencies, regarding past offenses, employee screening, adequate training and more.
The Mason Street group home has had complaints lodged against it in the past, but they were either found to be unsubstantiated or proper corrective action was taken.
“We deeply regret what occurred,” said Sheryl Zerbe, a spokesperson for ResCare Inc., which operates the group home. “We have extensive controls in place to protect the people we serve.”
Elderhaus PACE administrators acknowledged that proper procedures weren’t followed when the woman under their care was left unattended.
Smith said the proper response for all parties involved is to ask, “What’s going to prevent this in the future and how can it be prevented elsewhere?”
It’s not just a matter of what’s done to the individuals who perpetrated the violation, “but the people who hired those individuals and who are responsible.”
“We hear a lot about how the staff really care for these people,” Smith said, “but there was still this fatal error. And we feel that it’s really the group home operator and the day program people who need to have mechanisms in place to catch these human errors.”
The licensing organizations that oversee them, Smith said, must also assess their policies and procedures, and another look should be taken at the laws.
“Is it the ability of one to survive neglect that determines the charge, or is it the act itself?” she asked “The discrepancy of these two cases really highlights that it’s the individual’s ability to survive that made the difference in these two situations.
“And that’s wrong.”