The news takes on added significance because Emeritus is engaged in a $2.8 billion merger with Brookdale Senior Living. The combined company would be the nation’s largest senior living company.

An official at Emeritus provided information about the federal probe, which is focused on Medicaid billing and other “business dealings,” ProPublica reporter A.C. Thompson wrote Thursday.

Thompson was one of the journalists behind last year’s high-profile exposé on Emeritus, which focused on instances of improper care in assisted living facilities. One of these cases, involving a resident with multiple pressure ulcers who died, resulted in a $23 million verdict against Emeritus.

The federal investigation, reportedly involving both the Department of Justice and the Department of Health and Human Services Office of the Inspector General, began in January 2013, according to Thompson. 

Emeritus is fully cooperating in the inquiry but cannot publicly comment or discuss information that might “compromise or influence” the investigators, Vice President of Product Development and Communications Karen Lucas told McKnight’s.

“We also believe that allegations such as ProPublica’s in the midst of a government inquiry are inappropriate and premature,” Lucas added. “As I stated to ProPublica earlier this week, such inquiries in this day and age are common and not determinative of anything.” 

On a conference call regarding the Emeritus merger, Brookdale CEO T. Andrew Smith said his company “looked deeply” into the issues raised by the documentary. Brookdale was satisfied by Emeritus’ response to the program and is “quite comfortable” moving forward with the acquisition, Smith said.

Unfortunately, three high-profile cases involving sexual assault of a long-term care resident hit the news this month, one each in Kansas, New York and Minnesota, making it a relevant topic begging for discussion. The last case is especially horrific because the Minneapolis Star Tribune hunted down court records indicating the caregiver admitted to having sex with the 89-year-old resident, and that the victim was kept in a locked psychiatric ward for a few days while there an investigation was undertaken. According to the court testimony, when asked about the rape, the clinical services director said, “Did she tell you that this was consensual? Did she tell you that she flirts with this boy mercilessly?”

If you ever need an example of the absolutely wrong thing to say, and of a terrible human being, see above.

The place to start for nursing home administrators, in my opinion, is remembering that sexual assault is less about sex, and much more about power, especially over someone who is vulnerable. If you reframe rape and sexual assault in that way — as opposed to someone having sex with an elderly person — it can help staff understand how such horrific incidents occur.

To be fair, there isn’t evidence of widespread sexual abuse across the long-term care setting. But administrators, nurses and other managers have to make sure all staff members understand how serious abuse allegations are, reminds Susan V. Kayser, a partner at Duane Morris in New York who specializes in health law.

No matter the circumstances, “What stays the same is that the resident comes first. Remembering that the nursing home’s obligation is to the resident is a principle issue whether or not there’s clear-cut evidence,” she says. “You have a resident who has made a serious allegation. That’s where we are starting.”

In ProPublica’s database of Nursing Home Compare deficiencies, allegations involving the world “rape” are mentioned 400 times. Unsurprisingly, what often got facilities into trouble was a lack of documentation. In one incident in 2013, a resident at a California facility was regularly delusional and had said in back-to-back months that she was raped. But there was still a citation under F-tag 226 because when the resident made the second allegation of being sexually abused, there was no documentation indicating she had been interviewed, no examination and no record of the manager talking to other people on the floor about the specific incident.

No matter what the circumstances are, the best protection is for nursing homes to take allegations of abuse seriously, Kayser says. If the accused is a staff member, he or she is generally suspended pending an investigation. This is true even if a resident has dementia, even though it’s clear from the database that cognitive impairment may result in a resident’s allegations being ignored.  

“I would hope that without regard to the cognitive status of the individual that the nursing home would take the allegation seriously. You don’t know. It’s not like every utterance is without basis at all,” Kayser notes.

She also reminds that training and statement of policies is important.

“Make sure the word is out that management will not tolerate inappropriate behavior.”

That’s true not just for staff, but volunteers and external healthcare workers coming into the facility. In one 2011 case, a volunteer of five years was alleged to have made “inappropriate sexual contact” with a resident, but the volunteer noted he never received any sort of training regarding resident rights and abuse protocols. In another 2011 case, a lab technician went to draw blood from a resident, and began undressing the resident and himself without her consent, ultimately forcing her into committing an unwanted sexual act, according to the police report. It was discovered the lab tech had already had another complaint from a female resident, and the facility received an immediate jeopardy tag.

Finally, in any circumstance involving such as serious crime, it’s important for staff to reach out to family of the resident, Kaiser reminds.

“With respect to practical considerations I think being in touch with the family and expressing concern is very important as well,” she says.

Elizabeth Newman is Senior Editor at McKnight’s. Follow her @TigerELN.

The workers alleged Emeritus violated state laws regarding mandated meal times and rest periods. They also said they were denied overtime and not properly paid for training days, according to the lawsuit.

Emeritus denied any wrongdoing in a comment to McKnight’s: “We deny any allegation that we have violated any state or federal wage laws. At Emeritus, we strive to be the employer of choice…In California, like any other state in which Emeritus has operations, we comply with all applicable wage-hour laws.”

The settlement still needs to be approved by a state judge, which is scheduled to happen next month. The settlement would compensate workers, ranging from certified nursing assistants to janitorial staff that worked at the company’s California facilities between 2007 and 2013.

The news comes on the heels of Emeritus defending itself after a critical Frontline documentary that aired July 30. Emeritus said plans to respond vigorously to the documentary.

“We were disappointed by the report, which focused on very tragic, but rare and isolated incidents, that occurred several years ago at our communities,” Cobb said during an earnings call last Thursday.

The Frontline investigation, done in association with ProPublica, focused on the case of Joan Boice, who died three months after leaving an Emeritus facility. Emeritus now faces a $23 million verdict in a lawsuit that alleged poor care caused Boice to develop pressure ulcers, which contributed to her death.* The Frontline report presented Boice’s case as a high-profile example of systemic issues in assisted living — and in Emeritus communities specifically — that compromise resident safety.

The Frontline/ProPublica reporters did not present a balanced picture of Emeritus, resisting the company’s offers to connect them with satisfied residents and family members, Cobb said.

Emeritus did provide extensive information to the reporters, but “they used almost none of it,” Vice President of Product Development and Communications Karen Lucas told McKnight’s.

After being contacted in June 2012, Emeritus worked with the Frontline reporters in a “cooperative and supportive way,” Lucas added. She said the report was “sensationalized and lopsided” in tone and singled out Emeritus due to its status as the largest assisted living provider in the country.

The company is “using this opportunity to redouble our communication efforts,” and is prepared to address any questions or concerns, Cobb said on the earnings call.

As part of this effort, the provider has launched a website, www.EmeritusFacts.com.

The company appeared to stumble in its early response to the documentary, after an internal email was forwarded to ProPublica. The July 31 email from Lucas asked staff members to post positive comments about Emeritus on ProPublica and Frontline websites. The email was forwarded by a disgruntled employee and was not mistakenly sent to ProPublica by Emeritus, as some reports initially indicated, Lucas told McKnight’s.

*Editor’s Note: This article originally stated Boice died while residing at an Emeritus facility. The article has been updated to reflect that she was no longer a resident at the time of her death.

The hour-long documentary, “Life and Death in Assisted Living,” was based on extensive reporting by Frontline and ProPublica journalists. It focused in particular on Emeritus Senior Living, the nation’s largest AL provider. 

Emeritus faces a $23 million verdict in the case of Joan Boice, a resident who died in a California facility. The Frontline report delved into this case in-depth, in what it portrayed as a high-profile example of resident safety issues, a lack of staff training and systemic quality problems.

“The true story of assisted living won’t be found in television programs like Frontline,” stated ALFA President and CEO Rick P. Grimes.

Citing positive resident satisfaction statistics, Grimes stressed that ALFA members work closely with regulators on the state level. Mark Parkinson, American Health Care Association/National Center for Assisted Living President and CEO, agreed that states should be in charge of regulating assisted living, but he also cautioned that it should not be the only approach.

“Regulation that is done smartly, that promotes person-centered care, that promotes quality outcomes is great. But regulation that creates regimens, institutional-type settings, and really takes away from some of the benefits of assisted living would be a negative thing,” Parkinson said in an interview with Frontline. The edited transcript of the interview can be seen here. 

The documentary, “Life and Death in Assisted Living,” traces the rise of the assisted living sector and Emeritus in particular, which since its founding in 1993 has grown into the country’s largest AL provider. Overall, the sector now serves about 750,000 residents.

However, insufficient regulations have turned the multi-billion dollar industry into “the rock we don’t want to look under,” according to the journalists who worked on the project — A.C. Thompson, Jonathan Jones and Carl Byker.

The reporters reviewed extensive Emeritus records, including more than 100 lawsuits filed against the company. They looked at every Securities and Exchange Commission filing since 1995, thousands of pages of state inspection records, 911 call records and internal company documents such as emails and budgets, according to ProPublica. They spoke with facility directors and other Emeritus employees, workers at other assisted living companies, academics, ombudsman and regulators. 

They also attended the trial in the case of Joan Boice, who died while residing at an Emeritus facility in California. The company faces a $23 million verdict in the case.

LeadingAge members can contact the organization’s vice president of communications for help fielding media inquiries generated by the documentary, the provider advocacy group said Monday.

The report said that physicians treating nursing home residents are overprescribing antipsychotics through the Medicare Part D program, and that the doctors are not properly overseen by the Centers for Medicare & Medicaid Services. ProPublica, an independent investigative journalism organization, released the “Medicare Drug Program Fails to Monitor Prescribers, Putting Seniors and Disabled at Risk” report May 14.

AMDA-Dedicated to Long-Term Care (formerly the American Medical Directors Association) responded Tuesday that it “agrees that ongoing efforts to educate physicians and other clinicians about appropriate prescribing and management of antipsychotic medications are necessary.” The group also said that in some cases, antipsychotics are appropriate, and should be prescribed as long as there is thorough documentation supporting the decision.

The organization stressed that it offers educational programs to help cut down on antipsychotic prescribing by focusing on the root causes of dementia-related behaviors. It made members aware of these resources in a June 2012 letter calling for collaboration with CMS on an antipsychotic reduction initiative.

In terms of oversight, AMDA said it supports a “robust and coordinated pharmacy review process,” and is also committed to educating state survey agencies on the issue.

The American Health Care Association and LeadingAge earlier responded to the report, saying that better guidance for physicians and increased awareness around the issue would help the antipsychotic reduction efforts already underway.

Click here to view the full AMDA statement.

CMS partnered with the American Health Care Association’s Quality Initiative, which called for a 15% reduction in antipsychotic use in nursing homes by the end of 2012. Providers fell far short of that goal, AHCA recently announced. Despite working toward reduce antipsychotics in nursing homes, CMS is not currently focused on oversight of doctors prescribing these medications, Deputy Administrator and Director for the Center of Medicare Jonathan Blum told ProPublica, an independent investigative journalism news organization.

If the report draws more widespread attention to “what we already knew about rampant use of antipsychotics,” that would be positive, AHCA spokesman Greg Crist told McKnight’s. The organization has renewed the 15% antipsychotic reduction goal for 2013.

“We have a great collaborative relationship with CMS on this,” Crist said. “Irrespective of who’s doing the prescribing, we’re trying to reduce the use of antipsychotics when and where it is appropriate.”

The ProPublica report highlighted the case of Miami-based psychiatrist Enrique Casuso. He prescribed more antipsychotics to seniors on Medicare than any other provider in 2010, according to a searchable database of Medicare Part D prescribers unveiled by ProPublica. Many of these seniors had dementia and were living in long-term care facilities, Casuso told ProPublica. The state of Florida removed Casuso from the Medicaid program in 2005, but Medicare Part D insurers have only sent Casuso letters alerting him to government warnings regarding antipsychotics.

“We believe in better guidance for physicians and other prescribers to use medications more appropriate for the older population,” said LeadingAge President and CEO Larry Minnix.

Minnix also said that poly-pharmacy — or seniors taking multiple, often excessive or unnecessary medications — could be reduced with better prescriber guidance.

The ProPublica report was released last Saturday. Click here to access the “Prescriber Checkup” database.

So I should probably be cheering ProPublica’s announcement that the government is now releasing unredacted write-ups of problems found during nursing home inspections. 

Sorry, but I can’t.

I’m not questioning ProPublica’s motives. Its goal is laudable: to make the public better informed. It describes itself as “an independent, non-profit newsroom that produces investigative journalism in the public interest.” 

That’s great. So why am I not doing cartwheels? First, at this point in my life, the attempt might result in serious injury. 

But more important, releasing unredacted write-ups will not just make consumers better informed.

It also will likely fuel payday bonanzas for an army of personal injury attorneys -— especially those in the market for class-action lawsuits that target long-term care providers.

Previously, the Centers for Medicare & Medicaid Services has kept the redactions hidden. CMS did this as a way to ensure privacy protections for residents. But ProPublica requested the unredacted reports, successfully arguing that they are public records and that the added information can make these records more useful. Both points are valid.

But let’s consider what could happen. Imagine there might be a personal injury attorney out there looking to make nursing homes pay for using antipsychotics on residents with dementia. It could be for just one client. Or the client could be merely the tip of a payoff iceberg. 

All that hypothetical attorney needs to do now is go to Nursing Home Compare, and he or she can quickly tabulate how many patients with dementia were receiving antipsychotics. 

And, voila!: an instant database of prospects, sorted down to the facility level.

The Bible points out that the truth shall set us free. But this version of the truth also might send many operators on a path toward bankruptcy.