VAPO – Vulnerable Adult Protection Order – Part 2

stalking

Abuse of Vulnerable Adults – RCW 74.34 refers to “abandonment, abuse, financial exploitation and neglect” as the types of actions that vulnerable adults may need protection from.

This law does not address the fact that vulnerable adults are at the same risk, if not higher risk, of being stalked and harassed by predators.   As a vulnerable adult, there is no protection under Washington State law to protect a vulnerable adult from the abuse of stalking or harassment.  These actions are not included in the definition of “abuse” as written in RCW 74.34.  The definition of abuse is left open to interpretation and is not specific in naming stalking or harassment as forms of abuse.

We propose that language which defines stalking and harassment be

included into RCW 74.34 so that our Vulnerable Adults have the same

protections against predators available to them as every other citizen

in our state. 

As a review, please read the issues that led to my discovery of this critical omission in our law.  I have written a “short synopsis” of the issues that transpired in the post linked here as VAPO – Vulnerable Adult Protection Order – Part One.

We had an emergency protection order in place (which Kathy violated several times) but at the court hearing to finalize the order, the Judge would not sign it because “abandonment, abuse, financial exploitation or neglect” did not occur.  The Judge was clearly disturbed by Kathy’s actions and also agreed that Thomas needed protection – but the Judge said the way the law was written, he could not legally sign the order.

This also brought up the problem of the interpretation of abuse.  What I consider “abuse” to Thomas would not necessarily be abuse to me or any other adult.  It is individualized, and in this situation, the actions were abusive to Thomas.  But without knowing Thomas, the Judge would not be able to understand how extremely distressed some actions of others make him.

This is how we came to the point we are at now – we need to have a sponsor in our Washington State Legislature for this amendment to RCW 74.34.  We have a draft that was prepared by former Senator Maralyn Chase but unfortunately, she was not re-elected for 2019.   Bill Request for Revision to VAPO

Please – contact your legislators regarding this critical issue.  My senator is unable to sponsor this since he has already over-committed but will support any amendment which addresses this.

RCW 74.34.110

Protection of vulnerable adults—Petition for protective order.

An action known as a petition for an order for protection of a vulnerable adult in cases of abandonment, abuse, financial exploitation, or neglect is created.

The critical piece that is missing is that this RCW does not include protection or restraints from stalking or harassment (as defined in RCW 9A.46.110  – text of this RCW below) 

(1) A vulnerable adult, or interested person on behalf of the vulnerable adult, may seek relief from abandonment, abuse, financial exploitation, or neglect, or the threat thereof, by filing a petition for an order for protection in superior court.
(2) A petition shall allege that the petitioner, or person on whose behalf the petition is brought, is a vulnerable adult and that the petitioner, or person on whose behalf the petition is brought, has been abandoned, abused, financially exploited, or neglected, or is threatened with abandonment, abuse, financial exploitation, or neglect by respondent.
(3) A petition shall be accompanied by affidavit made under oath, or a declaration signed under penalty of perjury, stating the specific facts and circumstances which demonstrate the need for the relief sought. If the petition is filed by an interested person, the affidavit or declaration must also include a statement of why the petitioner qualifies as an interested person.
(4) A petition for an order may be made whether or not there is a pending lawsuit, complaint, petition, or other action pending that relates to the issues presented in the petition for an order for protection.
(5) Within ninety days of receipt of the master copy from the administrative office of the courts, all court clerk’s offices shall make available the standardized forms and instructions required by RCW 74.34.115.
(6) Any assistance or information provided by any person, including, but not limited to, court clerks, employees of the department, and other court facilitators, to another to complete the forms provided by the court in subsection (5) of this section does not constitute the practice of law.
(7) A petitioner is not required to post bond to obtain relief in any proceeding under this section.
(8) An action under this section shall be filed in the county where the vulnerable adult resides; except that if the vulnerable adult has left or been removed from the residence as a result of abandonment, abuse, financial exploitation, or neglect, or in order to avoid abandonment, abuse, financial exploitation, or neglect, the petitioner may bring an action in the county of either the vulnerable adult’s previous or new residence.
(9) No filing fee may be charged to the petitioner for proceedings under this section. Standard forms and written instructions shall be provided free of charge.
So even though the issues of stalking, harassment

RCW 74.34.130

Protection of vulnerable adults—Judicial relief.

While under the RCW, it is written that the court may order protection for vulnerable adults and restraining of the respondent from acts or actions which could be defined as stalking/harassment, it is not clearly defined.  This leaves the vulnerable adult in a precarious position which is not clearly defined by Washington State Law. 

The court may order relief as it deems necessary for the protection of the vulnerable adult, including, but not limited to the following:
(1) Restraining respondent from committing acts of abandonment, abuse, neglect, or financial exploitation against the vulnerable adult;
(2) Excluding the respondent from the vulnerable adult’s residence for a specified period or until further order of the court;
(3) Prohibiting contact with the vulnerable adult by respondent for a specified period or until further order of the court;
(4) Prohibiting the respondent from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;
(5) Requiring an accounting by respondent of the disposition of the vulnerable adult’s income or other resources;
(6) Restraining the transfer of the respondent’s and/or vulnerable adult’s property for a specified period not exceeding ninety days; and
(7) Requiring the respondent to pay a filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee.
Any relief granted by an order for protection, other than a judgment for costs, shall be for a fixed period not to exceed five years. The clerk of the court shall enter any order for protection issued under this section into the judicial information system.

RCW 9A.46.110

Stalking.

(1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:
(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and
(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and
(c) The stalker either:
(i) Intends to frighten, intimidate, or harass the person; or
(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.
(2)  (a) It is not a defense to the crime of stalking under subsection (1)(c)(i) of this                  section that the stalker was not given actual notice that the person did not want         the stalker to contact or follow the person; and
       (b) It is not a defense to the crime of stalking under subsection (1)(c)(ii) of this                 section that the stalker did not intend to frighten, intimidate, or harass the                     person.
(3) It shall be a defense to the crime of stalking that the defendant is a licensed private investigator acting within the capacity of his or her license as provided by chapter 18.165RCW.
(4) Attempts to contact or follow the person after being given actual notice that the person does not want to be contacted or followed constitutes prima facie evidence that the stalker intends to intimidate or harass the person. “Contact” includes, in addition to any other form of contact or communication, the sending of an electronic communication to the person.
(5)   (a) Except as provided in (b) of this subsection, a person who stalks another                   person is guilty of a gross misdemeanor.
(b) A person who stalks another is guilty of a class B felony if any of the following applies:
(i) The stalker has previously been convicted in this state or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim’s family or household or any person specifically named in a protective order;
(ii) the stalking violates any protective order protecting the person being stalked;
(iii) the stalker has previously been convicted of a gross misdemeanor or felony stalking offense under this section for stalking another person;
(iv) the stalker was armed with a deadly weapon, as defined in RCW 9.94A.825, while stalking the person;
(v)
(A) the stalker’s victim is or was a law enforcement officer; judge; juror; attorney; victim advocate; legislator; community corrections’ officer; an employee, contract staff person, or volunteer of a correctional agency; court employee, court clerk, or courthouse facilitator; or an employee of the child protective, child welfare, or adult protective services division within the department of social and health services; and
(B) the stalker stalked the victim to retaliate against the victim for an act the victim performed during the course of official duties or to influence the victim’s performance of official duties; or
(vi) the stalker’s victim is a current, former, or prospective witness in an adjudicative proceeding, and the stalker stalked the victim to retaliate against the victim as a result of the victim’s testimony or potential testimony.
(6) As used in this section:
(a) “Correctional agency” means a person working for the department of natural resources in a correctional setting or any state, county, or municipally operated agency with the authority to direct the release of a person serving a sentence or term of confinement and includes but is not limited to the department of corrections, the indeterminate sentence review board, and the department of social and health services.
(b) “Follows” means deliberately maintaining visual or physical proximity to a specific person over a period of time. A finding that the alleged stalker repeatedly and deliberately appears at the person’s home, school, place of employment, business, or any other location to maintain visual or physical proximity to the person is sufficient to find that the alleged stalker follows the person. It is not necessary to establish that the alleged stalker follows the person while in transit from one location to another.
(c) “Harasses” means unlawful harassment as defined in RCW 10.14.020.
(d) “Protective order” means any temporary or permanent court order prohibiting or limiting violence against, harassment of, contact or communication with, or physical proximity to another person.
(e) “Repeatedly” means on two or more separate occasions.

 

Too Little, Too Late

In continuing to  address the issues of reported healthcare neglect  in the intermediate care facility for those with intellectual disabilities and how investigations are handled within the Department of Social and Health Services, I have had very similar observations of a flawed system that is reported by experts in the report Too Little Too Late:  A Call to End Tolerance of Abuse and Neglect.

too-little-too-late-title

The above report does not address complaints and investigations of allegations from those living in the institutions but the observations reported by the expert consultants are concerns that I have expressed regarding lack of accountability in the system which is supposedly there to protect our most vulnerable.  I realize it is not my imagination but reality that the system is broken.

“My review of the Washington DSHS Quality Assurance system, specifically mortality review, found a flawed system that does not “meet and maintain high quality standards” and is not an effective safeguard to protect health and welfare. Within the 6 months studied-June 1- December 31, 2012- there was a number of preventable waiver participant deaths. In addition to the concerns I have about these avoidable deaths, the poor quality of care for other participants, whose death although expected, causes me great concern about the quality of health care coordination and provider ability to meet the health and welfare needs of Washington waiver participants.”

Sue A. Gant, Ph.D. Date:  August 6, 2012

 

“Another unusual feature of the RCS investigation summaries is that they often did not reference findings pertinent to the allegations of abuse, neglect, mistreatment, and exploitation referenced in the initial complaint(s). In other cases, investigation summaries would reference these allegations and findings regarding their merit, but then conclude that the no provider practice deficiency was identified.”

“Many of the problems could be traced back to the tardiness of the investigations, but others (as also noted in my initial report) reflected the investigators’ failure to address significant issues, including allegations of abuse and neglect. In addition, as noted in my initial report, these investigations continued to manifest a trend of very “conservative” determinations of no citations for “failed provider practice,” even in instances when investigation documents explicitly referenced failed practices.

In addition, DSHS’ routine “planned ignoring” of allegations of employee abuse and neglect in its investigations is wholly non-compliant with basic expectations of the Centers for Medicare and Medicaid, as well as its own Quality Management Strategy”

Nancy K. Ray, Ed.D. President NKR & Associates, Inc

As a nurse who has worked in a Joint Commission Accredited Healthcare Institution  for over 30 years, I understand the purpose of nursing policies and protocols.  They are not just a useless exercise – they are there for a reason – TO ENSURE PATIENT SAFETY – and they accomplish this through various routes.

he prerequisite training credentials of their investigators, are not addressed at all by DSHS’ policies. Other procedures prescribed by the policies are routinely not complied with, either because resources to ensure their implementation are not available or supervisory oversight by DSHS is so lax that noncompliance by investigators and their supervisors has become commonplace.

When an investigation is returned “Allegations unfounded” together with the nursing policy that was clearly violated in many areas, questions of integrity, accountability, knowledge of the subject matter, and many other questions arise.  There is certainly not “closure” to the problem as the agency sweeps it under the carpet with the rest of the ignored problems they wish away.

Resident health and safety is at risk and will continue to be so until some of these problems are addressed and a plan of correction put in place and evaluated for success.

Abuse and Neglect Response Improvement Report – October 2013

subcommittee-response

 

There is a solution to the problems that I am referring to.  Ensure The Department of Health has oversight and licenses the healthcare clinics housed on the campuses of the residential habilitation centers.  DOH is the state agency which specializes in healthcare and should be the agency which provides oversight of healthcare – not the Department of Social and Health Services.

 

DD Ombudsman

Hopefully soon, Washington State will have a Developmental Disabilities Ombudsman.

This past year legislation was passed (thank you  Senator O’Ban,  the legislative champion for SB 6564, providing protections for the most vulnerable people from abuse and neglect) which will provide funds to develop The Office of Developmental Disabilities Ombudsman.

dd-ombudsman

There has been a great need for this type of oversight for all people with developmental disabilities but especially for those who live in an intermediate care facility (ICF).  While the Long-Term Care Ombudsman can help in situations for those who live in a skilled nursing facility, group home, assisted living or other long-term care facility, the Long-Term Care Ombudsman is not available to assist the residents in the ICF.

These residents have been without an adjudicator if concerns regarding their care  or other issue are not addressed appropriately.  This is especially true for those residents in a state operated ICF.  Without an independent authority to help mediate differences between the person and the state, these residents may not have had an objective investigation of their concerns.

Allegations of neglect and harm have been ignored or swept under the carpet by the state agency when conducting investigations of state facilities.  The DD Ombudsman will help prevent some of this injustice to our most vulnerable citizens.

I contacted the Department of Commerce last week to inquire into the development of the Office of the DD Ombudsman given that the bill was passed last legislative session.

Below is the response that I received from a spokesperson for the Disability Workgroup:

“A stakeholder meeting was held September 29th and written comments were accepted through October 15th.

I am currently drafting the solicitation to be released later in November. Evaluations of the bid responses will be in January 2017 and an announcement of the winning proposal probably in February 2017.

That organization will need to create the office, hire staff, train volunteers, etc. I anticipate them starting their ombuds duties sometime in the summer of 2017.

I hope this helps. Thanks for asking.”

Whistleblowing

Someone needs to speak up and I’ll keep speaking up until some of these serious issues of healthcare inequity are actually looked at and corrected

A recent blog posting entitled “The Journey of a Whistleblower: The Challenges, the Pains and the Price ” identifies some of the issues when one is faced with some ethical decisions.

While my son was a resident at a state operated intermediate care facility, I brought issues of concern to the administration and the medical director.  When no action was taken, I approached the Human Rights Committee of the facility.  They did not think that the issues of healthcare neglect and injury were a concern of theirs.  I then went to the advocacy group for the residents of the facility.  The president told me that their goal was only to keep the facility open – they had no say in assessing or measuring standards of care.

Obviously the healthcare and quality of life for the residents was not on the radar of any of these groups.

So, I keep trying to get people, organizations, legislators and agencies to see the serious concerns with medical and nursing care at some of these facilities.

If your loved one was dependent on the care provided in a healthcare facility, would it be important to know that all the prescribed medications and treatments were administered?  Or would it be okay for the nurses to only administer sometimes but document that all prescribed administrations were completed?

Would medication compliance rates of 11-46% be acceptable to you?  These rates are certainly not acceptable to me.

But it’s not just the low compliance rates I’m concerned about – it’s the years of falsified records across the board on a variety of medications by many nurses that is a huge concern.  Who is to know if the medications are really administered with so little oversight?

Who monitors medication administration – apparently no one and this is a major problem that needs immediate attention.

There is immediate jeopardy to all residents of the facility until the medication administration problems are examined and corrected. It is shameful on the part of our state agencies that these practices have been and still are accepted practice.

As a nurse myself, I know this practice is unethical and illegal to falsify these documents.  I question the level of integrity of the nurses working at this facility who routinely engage in this illegal activity.

This time has come to go outside the state organizations and inform others.  It is not just about keeping a facility open, it is about providing safe, quality care.  Care that is not happening at this time.

 

Healthcare at the Intermediate Care Facility

Who oversees the healthcare at the intermediate care facility for those with intellectual disabilities (ICF/ID)?  If you have a loved one who lives in an ICF/ID it may be worth looking into this to ensure that the healthcare actually does at least meet the minimum standard of care.

This was not the case in the ICF/ID that my son lived in.  I first started noticing problems the first year he lived there and I tried to work with the team and work within the system to improve the care, provide education and collaboration.  As system after system broke down and my son’s health grew worse I was making more and more trips to his home to provide the care and treatments that were supposed to have been provided by the nurses and team at the ICF/ID.

I knew the medications were not being applied but since the nurses were charting as given that was proof that the medications were being applied as prescribed. The fact that my son was not responding indicated that more potent medications were needed in addition to other medical treatments to control his inflammation.  These other treatments are not without risk and actually do increase his risk of cancer but we needed to get the inflammation under control and his immune system stabilized.

I was visiting at least 4 times a week and would apply his topical medications when I visited – knowing that he would at least be getting them when I was there.  They were actually supposed to be applied twice a day  and were charted as being applied twice a day but that is not what was happening.

After we moved our son to supported living and his care staff  applied the prescribed medications as ordered his inflammation quickly was controlled.  In about one month’s time the inflammation that had been extremely problematic for 3 1/2 years was now in total control.  His lab work was essentially normal after 3 1/2 years of having hematological problems. The medications actually did work – they were just not being administered as prescribed.

Now that I have the actual pharmacy and nursing records to review, I have found 9 medications that were falsely documented as being given for 1-3 years.  As a nurse I am totally appalled at the lack of quality and integrity that was accepted and not even questioned and do not understand how these dramatic errors can go unnoticed and uncorrected.

Below are charts of 5 of the medications showing the dates of administration, the amounts the pharmacy (at the ICF/ID) dispensed and the amounts that were charted as given. The compliance rates are unbelievable!  Who would accept these rates as meeting any type of standard of care? Why is this acceptable at the ICF/ID?

medication-1medication-2medication-3medication-4medication-5

It’s not just nursing that was the problem.  There was to be a 90-day medication review or reconciliation.  The purpose of this is to check each medication and ensure it is still needed and is indicated and the correct dose is prescribed.  Obviously the medication reviews were not done (but were signed off as being done)  since 3 of these medications were only needed for a short time (1 month or less) but remained in my son’s active  medication profile for up to 3 years dispensed and signed off as administered.   Who really knows what was given and what was just charted on as given.

How is one supposed to know if a medication is working or not when there is this type of record keeping?

There are so many problems that can be identified just with these medication errors.  This is at a state operated facility and so far the state investigation has stated that the allegations are unfounded based on the fact that the nurses charted the medications as given as ordered.

The state agency that oversees this facility is the Department of Social and Health Services.  Unfortunately, complaints to the Medical Quality Assurance, Nursing Quality Assurance, Department  of Health, Pharmacy Quality Assurance are unable to provide any guidance since they do not oversee any of the services at the ICF/ID.  It is up to DSHS and they do not see any problems.

Residential Care Services has opened up another investigation to review these issues and other allegations healthcare abuse and neglect.  My hope is that this time they will be able to see the problems and work on a plan for correction so that the residents do indeed have healthcare that at least meets the minimum community standard of care.  Currently that is not happening.

 

 

 

Who Watches the Watchman?

When allegations are reported and investigated – what happens if the investigators are actually part of the group the allegations are against?  Who provides an independent review of the allegations if the investigative agency can not be objective and actually do a real investigation?

These are questions I have regarding allegations of medical/nursing neglect and abuse  in the treatment of my son at the state operated intermediate care facility where he lived for 5 years.  The agency which does the investigation is the agency which runs the facility.  Unfortunately, even though the allegations are all medical and nursing care issues, the investigator did not have one healthcare provider review the allegations, documents or look into the fact that policies are outdated or do not meet the minimum standard of care.

But these “experts” have decided that the allegations are unfounded based on interviews with agency staff (non-healthcare) and administration.

We hear that the ICF/ID provides “comprehensive care” including healthcare and that there is oversight to ensure the care is being provided. Maybe in doing random surveys and looking at random samples, it may appear that the care is being provided.  Also in those surveys they do not look at the quality of healthcare or if the healthcare meets the community standard of care.  They seem to check that the providers have current licenses to practice their profession.  I think that we all know that having a license is not the same as providing quality care.

In my attempts to have an objective investigation I have contacted several other agencies in the state, including the Department of Health, and have gotten nowhere.  They all point to the Department of Social and Health Services as the agency providing oversight of the care.  Even though the ICF/ID is a medical facility by federal definition, our state defines it as a long term care facility yet the Long Term Care Ombudsman does not consider it a long term care facility and is of no help.

Clearly there are issues of neglect and abuse – any sane person could look at the records and documents and make that conclusion – for some reason though the Department of Social and Health Services and their investigative team has chosen to continue this neglect by failing to see the obvious and make corrections.

The issues fall into various categories of medical malpractice, medical neglect, restraints without consents, multiple injuries including fractures, false documentation of over 8 medications for over 2 years, failure to communicate with guardian regarding psychotropic medication changes, failure to provide prescribed medical treatments and transport to medical treatment center for prescribed treatments, applying splint to wrong foot, applying splint over shoe rather than inside shoe and failure to protect from client-to-client abuse are just a few of the allegations.  Maybe some of the issues actually fall into criminal categories.

Certainly in my mind the lack of ability of the investigators and the DSHS administration to do an objective and fact finding investigation is criminal.

Does one need to file a lawsuit to get anything done about this?