New rules for elder care facilities after KXAN investigation

AUSTIN (KXAN) — KXAN’s Investigation into alleged sexual assaults at an Austin assisted living facility has triggered coming changes to help better protect your elderly loved ones.  In May we first told you about the allegations Longhorn Village, a retirement community and assisted living center created by the University of Texas Alumni Association – the Texas Exes. During our investigation the Texas Department of Aging and Disability (DADS) services admitted it broke state law in the course of its investigation of the allegations.

We discovered that despite having a court ordered guardianship stating she was mentally incapacitated and incapable of making her own decisions, DADS investigators didn’t have it before determining the sexual assault allegations were unsubstantiated.  Neither Longhorn Village nor DADS reported the allegations to law enforcement, as required by state law.

GOING IN-DEPTH // Texas Exes

The University of Texas alumni group, Texas Exes, has an agreement with Longhorn Village.

It provides for a royalty to be paid to the Texas Exes based upon entrance and monthly maintenance fees.

That was more than a million dollars over 2012 and 2013.

Now, because of what we uncovered, elder care facilities in Texas will be required to keep guardianship orders on file for residents who have them.

“We are going to have positive change,” said state representative Elliot Naishtat, who saw our story and took immediate action. Naishtat is the Vice Chairman of the House Committee on Public Health and also sits on the House Committee on Public Health and House Committee on Aging. He says since our investigation aired he has been in discussions with top officials at the Texas Health and Human Services Commission (HHSC) and DADS.

DADS, which oversees elder care facilities in Texas, will also have new marching orders.

“Any investigator or case worker who has a situation where there are concerns about the resident who has been abused or neglect will be able to go to the file and see whether or not letters of guardianship have been issued for this individual and then to act accordingly,” said Rep. Naishtat.

First, DADS will direct facilities to keep guardianship orders in a resident’s file.  Then the state will adopt new rules officially requiring it.  Representative Naishtat says he will introduce a bill in the upcoming legislative session proposing penalties for those who don’t follow the new rules.

“We support the idea of having some notation on a medical record that a person has a guardian,” said DADS spokesperson, Melissa Gale.

But does that go far enough?  For the alleged victim in our investigation, maybe not.  Her family alleges in a lawsuit against Longhorn Village that a male resident sexually assaulted her there in 2012.  The suit also alleges staff did nothing to protect her even though she had a guardianship order.

Longhorn Village InvestigationDADS reopened the case after our investigation and finally reported the allegations to law enforcement, but again determined the allegations to be “unsubstantiated.”

“The facility believed it was protecting this resident’s rights,” said Gale, “…the right to engage in a relationship.  The right to privacy and independence,” she continued.

“Even though she was ruled incapacitated by a court, they still felt like they didn’t need to communicate what was going on to the family or the state or a law enforcement agency?”  asked Brian Collister.

“After interviewing residents, staff, they concluded, the investigator determined that the facility had not violated any regulations in protecting this woman,” Gale responded.

The investigator made that determination even after noting in 2012 that the alleged victim has dementia and is “not able to make simple, informed decisions.”  And last month DADS received an affidavit from the doctor who determined she was incapacitated, stating she “was not competent to consent to sexual relations due to her mental condition.”

In the final investigation report, the investigator’s analysis of evidence shows the:

 “Preponderance of the evidence demonstrates there was no evidence that alleged sexual activity between Resident (redacted) and Resident (redacted) happened or was coerced or non-consensual.”

The report also states:

“A re-examination of the guardianship order was conducted.  Interview with the attorney who wrote the order revealed there was nothing in the order which stated intent was to take away Resident (redacted)’s right to sexual consent.  In fact, the order stated specifically ‘Guardian shall have only those certain rights, duties, powers and authority over the Ward’s person and estate are specified herein…’  There was no eveidence in the records or interviews that the family gave any other specific requests to restrict Resident (redacted)’s sexual activities.”

The investigator also wrote:

 “There was no evidence that her behavioral decline leading to her discharge had to do with the alleged sexual activity.

“I think there’s some opportunity for change in that organization,” said the alleged victim’s daughter. “It tells me there’s, a problem there.”

The daughter says she is stunned by the outcome of the re-opened investigation.

“I thought they were protecting the reputation of their organization and that they were not really looking at the facts,” she said.  “It would be an injustice to me to think that DADS can interpret what a judge had in mind when he signed an order like that,” she said.

We reached out to Longhorn Village for comment on this story but got no response.

DADS initially claimed it did not have the guardianship order when conducting its investigation.  But, we found the agency did have it all along in the re-opened investigation.

Getting Help
If you suspect abuse or neglect of a loved one in a nursing home or assisted living facility, state law requires you to notify your local law enforcement and the Texas Department of Aging and Disability Services. DADS has 24-hour hotline you can call, 1-800-458-9858. Or you can file a report online.

“The guardianship order should have been in the investigator’s hands but was not,” admitted Gale.

After state investigators ruled in 2012 that the facility didn’t fail to protect the alleged victim in this case, a nurse did deliver the guardianship order to the agency’s headquarters.  But it never made to the investigator handling the case.

“This agency had the guardianship order back in 2012,” asked Brian Collister. “Why didn’t it reopen the investigation then?”

“We looked into that and the guardianship did come to DADS and should have been forwarded on to the region, to the investigator,” Gale said. “It is really unfortunate that happened and it was a mistake,” she continued.

“How can people still have confidence in this agency to protect their parents or loved ones who are in these situations?” Brian Collister asked.

“We learned a lot during the course of this investigation. And we’ve gone back to correct some things we could have done better,” said Gale.

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