Investigative Summary:

Advocates are calling for more transparency and accountability from the industry caring for older and often vulnerable Texans who live in nursing homes and assisted living facilities. After KXAN investigators discovered the state has not cited facilities in the majority of cases where there was evidence of abuse over the last few years — and fined far fewer of them — at least one lawmaker agrees, saying we need to prioritize safety and quality of long-term care this legislative session.

  • Read Part 1: Texas doesn’t penalize most senior living facilities with confirmed abuse
  • AUSTIN (KXAN) — Carl Sherman has spent time walking the halls of Texas nursing homes and assisted living facilities. As the former mayor of DeSoto, he made it a priority to go to around three facilities a week to visit with constituents.

    “When I go by their room, they’re sitting in their chair, looking out the window and just looking at cars pass by,” he said. “Nobody’s going by there and saying, ‘You used to be a doctor or used to be a nurse or used to work at the post office. You were relevant, you know, to my life.’ Now, it’s as though we just don’t have time.”

    In his current role as the state representative for the same area, he tries to keep these residents’ concerns in mind.

    He and other Dallas-area lawmakers are particularly attuned to issues facing older adults and their safety — not just those living in long-term care facilities regulated by the state — after a string of suspected murders in independent senior living communities in North Texas over the last few years.

    Last fall, Billy Chemirmir, 49, was convicted in two of the murders; he’s facing indictments in 22 murder cases, in total.

    Several bills have been filed to address the dangers unearthed through the case, including one that would require background checks for staff in less-regulated, independent senior housing.

    Background checks, state inspections and other safeguards are written into Texas Administrative Code and required of assisted living and skilled nursing facilities regulated by the Health and Human Services Commission, or HHSC. But Rep. Sherman said he believes Texas could still do more to protect residents in these long-term care facilities, too.

    • Rep. Carl Sherman delivering supplies and visiting long-term care facilities during the pandemic (Photo provided by: Rep. Sherman's staff)
    • Rep. Carl Sherman delivering supplies and visiting long-term care facilities during the pandemic (Photo provided by: Rep. Sherman's staff)
    • Rep. Carl Sherman delivering supplies and visiting long-term care facilities during the pandemic (Photo provided by: Rep. Sherman's staff)

    KXAN brought Rep. Sherman the concerns of a family whose mother was at the center of a state sexual assault investigation in her Austin area assisted living facility.

    In August, her son Billy Mullens sat down with KXAN Investigator Avery Travis to share his frustration, after the family’s Ring camera caught footage of a staff member appearing to sexually assault her in her room.

    “She was hurt, you know, she was violated,” Mullens said.

    Patient safety advocate Ware Wendall said his group, Texas Watch, has been tracking issues with quality long-term care in the state for years. He calls it a state where it’s “dangerous to be old.”

    Wendall points to low ratings for Texas facilities from the Centers for Centers for Medicare & Medicaid Services — which regulates skilled nursing facilities, in particular.

    He said many advocates believe the for-profit structure of many corporate-owned Texas facilities can lead to cutting corners, through understaffing or a lack of on-site supervision.

    “It shouldn’t be this way, but it’s very predictable because we have these laws on the books that have loopholes in favor of nursing homes and other corporations that are going to prioritize, again, their profits over the safety of their patients,” he said. “You have to make danger unprofitable in this state.”

    A national review published in 2022 called “Staff-to-resident abuse in nursing homes: a scoping review” stated that an “imbalance between excessive demands [on staff] and coping resources may increase the risk of abuse.”

    The researchers noted that among the cases in the studies they reviewed, sexual abuse constituted a small percentage of the total cases. Neglect cases or other types of inadequate care accounted for a larger percentage of the cases reviewed.

		Patient safety advocate Ware Wendall believes loopholes in the law allow for hidden harm in the Texas system that's supposed to protect seniors. (KXAN Photo/Avery Travis)

    Patient safety advocate Ware Wendall believes loopholes in the law allow for hidden harm in the Texas system that’s supposed to protect seniors. (KXAN Photo/Avery Travis)

    Wendall acknowledges there are instances where operators cannot — under the current system — be held liable for the actions of an employee, if they conducted the necessary background checks and hiring processes. However, he believes the operators have a duty to go above and beyond when it comes to the environment they create and by vetting these caregivers.

    “Nursing home operators should be responsible under the law for what happens at their facilities,” he said. “They have control over who they hire, who they’re putting into contact with our loved ones.”

    Correct and prevent

    The state requires facility operators to have systems in place to respond to and correct any violations — including abuse — as they are discovered, according to a spokesperson for HHSC.

    The regulatory agency does not cite facilities if they have already come back into compliance with the regulations — by correcting and preventing the problem — when its investigators or surveyors arrive. The spokesperson said if the facilities’ systems are working “properly,” problems are addressed and corrected “quickly,” for the safety of the residents.

    KXAN investigators reviewed state logs of abuse allegations in long-term care facilities from January 2019 to September 2022. Of the cases where the state found evidence of abuse, facility operators were only cited 30% of the time. The majority of cases were labeled “substantiated but not cited,” meaning the facility had corrected the problem at the time of the investigation.

    However, in cases where the home was cited by the agency, KXAN found even fewer instances where the operator had to pay a monetary penalty.

    For example, in fiscal year 2021, HHSC logs show more than 250 abuse cases where facilities were cited for deficiencies at the time of the investigation. Meanwhile, HHSC imposed 223 monetary penalties for all kinds of violations — not just abuse — during the same time frame against skilled nursing, assisted living and day activity and health services facilities, according to it’s yearly regulatory report.

    Each penalty imposed by HHSC ranged in cost from $250 to hundreds of thousands of dollars. However, the report shows in many cases these facilities ultimately owed nothing, after appealing their case.

			A photo of Billy Mullens’ parents in his Austin home. (KXAN Photo/Chris Nelson)

    A photo of Billy Mullens’ parents in his Austin home. (KXAN Photo/Chris Nelson)

    Mullens’ mother’s assault allegation was substantiated, but the facility was not cited. HHSC classified and responded to this incident as a Priority 2 — meaning the state determined serious harm had occurred, but the threat was not “ongoing,” as law enforcement had removed the alleged perpetrator and the facility had checked on other residents. KXAN is not naming the suspect or the facility involved in this case, in order to focus on the system as a whole.

    Wendall said this case raises concerns for families about what other serious cases may be hiding in the enforcement data, leaving systemic issues with hiring or vetting staff potentially unaddressed.

    “We need the state to take that seriously and to pursue that immediately — not to downgrade it,” he said. “We need real enforcement, not slaps on the wrist — $1,000 here or $5,000 there — but meaningful penalties.”

    A spokesperson for HHSC told KXAN the facility in Mullens case had conducted a criminal background check on the staffer, as well as checking his eligibility to work with the state’s Employee Misconduct Registry, before he was hired. HHSC has since referred this person to that list of individuals permanently barred from working in any long-term care facility statewide.

    The spokesperson said surveyors are also looking to determine whether a facility had sufficient staffing levels and had trained those staff on how to prevent, identify and report abuse and neglect.

    Protecting residents

    In the past, long-term care industry leaders and advocates have told KXAN — and lawmakers — facility operators need more resources to care for residents, not fewer.

    For example, in an interview last year, Kevin Warren, the President of the Texas Health Care Association, or THCA, pointed out a gap in how much it costs to provide daily care for residents and the current Medicaid reimbursement amount. THCA represents skilled nursing facilities. Its website states the gap in funding “impacts quality care, contributes to staffing issues and an inability to maintain modern facilities,” which is why it is asking lawmakers to address it.

    Wendall and other patient advocates, such Andrea Earl with AARP Texas, argue any funding or assistance from the legislature should potentially come with strings attached.

    Earl said AARP Texas is urging lawmakers to require even more clear, public reporting of who owns these facilities and how they spent their funds.

    “Making sure that those funding dollars are going to staffing — and quality staffing care,” she said.

    Registered nurses, certified nurse aides, and other facility staff walk the halls of the facility every day and are directly responsible for the care of these residents.

    It’s a physically and emotionally demanding job, Lori Porter, founder of the National Association of Health Care Assistants, told KXAN in an interview last January.

    “You are the first line of information, the first line of care,” Porter said at the time. “You often feel like you are the most important in the room but are rarely seen as that.”

    Last summer, Warren described the struggle of filling these positions at a legislative committee hearing. He told lawmakers the industry was competing for quality staff with other healthcare professions.

    By last fall, a report from Texas Health and Human Services showed at least 60 nursing facilities of the states 1,200 had permanently closed — citing the effects of the pandemic, inflation, staff burnout and low Medicaid reimbursement rates.

    This legislative session, Rep. Stephanie Klick has already filed a bill calling for student loan repayment for certain nurses employed by a long-term care facility, to try and address what Warren has called in past interviews “the most significant challenge” he has seen face the long-term care industry during his time in it.

    But when it comes to abuse cases specifically, in a recent statement to KXAN for this story, Warren said, “The top priority of Texas nursing facilities is the health and safety of residents. Protecting residents from situations of abuse, neglect and exploitation (ANE) are of utmost importance. Beyond this responsibility that facility leadership and staff take on, there are regulatory and reporting requirements in place at state and federal levels.”

    Carmen Tilton, Vice President of Public Policy at the Texas Assisted Living Association, also described the currently regulatory safeguards aimed at preventing instances of abuse and neglect, including background checks and regular, on-site inspections of facilities by the state and other health officials.

    “Any tragedy that takes place in a community is one that we wish didn’t happen,” Tilton said.

    Most vulnerable population growing

    AARP Texas also wants to see more funding allocated to the Health and Human Services Commission — particularly to fund programs for caregivers assisting older Texans who do not live in facilities regulated by HHSC. However, with the aging population growing and more families seeking long-term care, she said advocates will be particularly watching for any impact on the quality of their care.

    “These are some of the most vulnerable populations across the state, and they don’t have the capacity to have their voice,” Earl said. “It is going to sincerely be an issue in the future.”

    In a recent regulatory report, HHSC cited U.S. Census data that shows the population of Texans aged 65 and older is expected to grow to more than 15 million by 2050 — and make up 17.4% of the total state population.

    “As the older adult population increases, Texas will need more health and human services and supports for older residents,” the report states.

    Rep. Sherman told KXAN he agrees and plans to make this a priority this legislative session.

    “I think that we all have a fiduciary obligation to focus on the most vulnerable in our population. So, yes, we can do better. As a member of appropriations, I intend to make sure that we do a better job at taking care and providing the resources that they need,” he said. “I believe that the conscience of this House floor will be reflected in how we support our elderly.”

    Digital Data Reporter Christopher Adams, Senior Investigative Producer David Barer, Director of Investigations & Innovation Josh Hinkle, Investigative Photographer Chris Nelson, Social Media Producer Jaclyn Ramkissoon and Digital Director Kate Winkle contributed to this report.