AUSTIN (KXAN) — In Billy Mullens’ Central Austin home, green plants of all shapes and sizes line the living room floor, where the light streams in from the window.

More greenery fills the patio outside, but he points to one potted plant in particular — describing how it grew from a single clipping off a plant that belonged to his mother, before she passed away last summer. Her obituary called her an “avid gardener” with some of the “finest and best-tended” gardens.

“She taught me how to care for things – to take care of them,” Billy said.

After his mother’s Alzheimer’s diagnosis, Billy said his father began caring for her, instead — working hard to make her feel comfortable and safe. However, as her disease progressed, the family decided she needed around-the-clock care from trained professionals. They ultimately chose an assisted living facility that offers memory care, near his father’s Austin area home.

“‘It seems like the right place where we want to trust somebody to take care of Mom,’” Billy remembered saying at the time. “She started referring to that as her home, so that was a relief to me.”

Still, Billy’s father struggled with the change, so they decided to install a camera in her room for him to be able to check on his wife on the days he could not be there with her.

“I’m so glad we did that because if we hadn’t had that camera, there is no way that we would have known what happened to Mom,” Billy said.

‘She was violated’

One night in March 2022, Billy’s father opened the camera application to check on his wife.

The footage, which the family asked KXAN to watch, showed a male staff member bringing her into her room, closing the door and then — as was later described in a police report — sexually assaulting her.

“I saw it the next day and was disgusted and horrified and furious. But I cannot even — I can’t even think — I cannot imagine what my dad was feeling when he saw that happen to his wife, when he was already uncomfortable with not being there to protect her,” he said.  “She was hurt, you know? She was violated.”Andrea Earl with AARP Texas said 

According to Billy, the family called police immediately. Arrest records show the staffer was arrested by Bee Cave police, booked into the Travis County jail and charged with felony aggravated sexual assault.

The assisted living facility — which had hired and employed him at the time of the incident — was given no citations, according to records from the state agency in charge of regulating these kinds of facilities, the Health and Human Services Commission, or HHSC.

The documents show that when HHSC surveyors came out two days later, the facility had suspended the staffer, checked on Mullens every 15 minutes and conducted “safety surveys” with the other residents. 

HHSC noted the facility had conducted a legally-required criminal background check and had checked the staffer’s eligibility with the state’s Employee Misconduct Registry before hiring him.

The Mullens family still has questions.

“How could this possibly happen? That you would take our loved one, charge us a lot of money to take care of her, and then not take care of her?” Billy asked. 

Facilities not always cited

The Texas Administrative Code lays out specific requirements for operating Texas skilled nursing facilities, assisted living facilities and other long-term care facilities that offer daytime activity or health services to older Texans: everything from having functioning fire alarms, to storing food properly, to keeping a home “free from” neglect and abuse.  

HHSC surveyors and inspectors are tasked with responding to allegations of abuse, as well as dozens of other potential violations of the code.

When HHSC finds a facility is out of compliance with these state regulations, it can cite a facility or take further enforcement action, such as calling for the facility to pay a monetary penalty or suspending or revoking its license to operate.

KXAN reviewed nearly four years of abuse allegations from long-term care facilities as well as day activity and health services facilities, revealing more than 3,000 cases where the state found evidence substantiating the abuse. However, facilities in more than 70% of the substantiated abuse cases from January 2019 to September 2022 did not face any citation for that abuse.  

The agency defines “substantiated but not cited” cases as times when the investigation determined the allegation did occur, but by the time a surveyor had arrived, the facility had “taken the actions necessary to correct and prevent the deficient practices” — meaning it had come into compliance with state regulations.

Facility operators are required to have systems in place to identify and respond to non-compliance as it is discovered, a spokesperson for HHSC told KXAN in an email.

“These systems, when functioning properly, ensure that problems are quickly identified and resolved in an efficient manner even before investigators and/or surveyors arrive,” the spokesperson wrote.

Industry sources tell KXAN the goal of these policies is keeping residents safe by correcting issues immediately.

Andrea Earl with AARP Texas said she understands there are cases where the state cannot — and should not – hold facilities liable for a bad actor. She said she also recognizes the importance of correcting issues as they occur.

Still, she said the senior advocacy group has been tracking widespread issues with the quality of care at Texas long-term care facilities for years.

“We understand things happen in nursing home facilities; we understand that mistakes happen. However, no slap on the wrist — nothing — is unacceptable,” Earl said

She said families already have a lot of “homework” to do when vetting a facility and deciding to move their loved one there, without worrying about accountability — or a potential lack thereof — in cases of substantiated abuse.

“Any abuse case at any of these facilities is unacceptable. It is really Texas’s job to draw firm line when it comes to the safety of residents. It should never be on the family to have this burden of assuring safety,” she said.

It’s one of the reasons AARP Texas asked lawmakers to consider requiring more transparency on how facilities are spending their money: “making sure funds are going to the direct care of residents, rather than the pockets of the facility themselves.”

The ‘top priority’ for facilities

Kevin Warren, President of the Texas Health Care Association, represents and advocates on behalf of several hundred skilled nursing facilities in the state. He said the top priority of Texas nursing facilities is residents’ health and safety.

“Protecting residents from situations of abuse, neglect and exploitation (ANE) are of utmost importance,” he said in a statement to KXAN.  “Beyond this responsibility that facility leadership and staff take on, there are regulatory and reporting requirements in place at state and federal levels.”

After the alleged incident is reported to the state for investigation, Warren noted that facilities themselves further investigate these kinds of allegations. Then, they report their own investigation findings and outcomes, in tandem with the state’s on-site investigations.

The skilled nursing industry has additional reporting requirements, as it is also regulated at the federal level by the Centers for Medicare and Medicaid Services — unlike assisted living and other facility-types licensed by HHSC.

“Nursing facility providers implement protocols and procedures to not only prevent these types of situations but to detect if an allegation or concern of abuse, neglect or exploitation is identified,” he said in the statement.

Potential for harm

The number of incidents and complaints about overall violations “soared” during the pandemic, according to HHSC’s most recent regulatory report on Long-term Care, released in March 2022. The spike came amid an already increasing workload for staff over the last decade, the report said.

During fiscal year 2021, surveyors with HHSC visited its licensees more than 28,000 times, marking a nearly 50% increase in visits from the year before the pandemic, fiscal year 2018.

• Read the full report here

For context, abuse and neglect violations did not rank among the most common citations doled out by the agency in fiscal year 2021; violations for policies involving infection control, food handling and sprinkler systems raked in the most citations among skilled nursing and assisted living facilities, according to the report.

The agency prioritizes its response to complaints and incidents based on the severity and urgency of the allegations, its spokesperson said.

First, intake staff collect information about the allegation. Then, staff with the Regulatory Services Complaint and Incident Intake division, or CCI, decide on a priority categorization for the complaint.

For example, if there was reason to believe the threat to residents was still active, HHSC policies say surveyors or investigators would arrive within 24 hours of the state becoming aware of an incident.

Meanwhile, if the state believes “serious harm” occurred, but the threat was no longer active, it could be as long as 14 days before the state has to go out and investigate.

For cases of more “minimal harm,” the investigation or survey might take place during HHSC’s next on-site visit — meaning the time period could be even lengthier.

When reviewing logs of substantiated abuse allegations from long-term care facilities over the last nearly-four years, KXAN investigators found the majority of the highest priority cases did result in citations, while lower-priority cases did not — despite serious harm occurring in those incidents.

The state cited around 70% of Priority 1 cases, when HHSC arrived on or before 24 hours after becoming aware of the incident.

Meanwhile, it cited around 30% of Priority 2 cases, where serious harm occurred but the threat was not believed to be ongoing.

HHSC categorized Mullens’ case as Priority 2.

In email to KXAN, a spokesperson for the agency said, “HHSC is concerned about every allegation brought forward, regardless of its priority.”

The spokesperson also said that family, or anyone with additional information about an allegation that could change its priority, should report it to the agency.

KXAN asked whether the agency would be able to respond more quickly — and categorize more complaints as Priority 1 — by staffing more surveyors and investigators. The spokesperson responded that prioritization of cases was not dependent on agency staffing levels. They explained CCI, which determines the priority categorizations, was a separate division of the agency from the one that manages surveyors and inspectors, so categorizations would not change if HHSC had more surveyors and investigators.

‘The way they do business’

When surveyors and investigators arrive on-site, they can check personnel files, policies and procedures, previous abuse and neglect investigations, accident reports and a list of other facility documentation, according to state intake forms KXAN obtained and reviewed.

These forms reveal they can also conduct “observation rounds” and interviews with staff or residents to ensure the deficient practices were corrected or prevented.

A spokesperson for the agency added its surveyors conduct two separate investigations: one into whether the abuse occurred and another into whether the facility followed all relevant regulations. These include having sufficient staffing levels, training staff on how to prevent, identify, and report abuse and neglect, reporting any incidents to HHSC as required by law, and conducting the required background checks.

Austin attorney J.T. Borah said, despite these steps, he hears the same concerns from families who decide to sue a facility in civil court over the treatment of their loved ones: “I still haven’t found out what happened. I don’t know that anyone was held accountable, and I’m afraid this is going happen to someone else.”

Borah said he deals with abuse cases far less frequently than neglect cases. With allegations of neglect, he said he can often prove how broad patterns of understaffing or poor hiring practices affected the quality of care at a facility, leading to neglect.

“But it also sets up the possibility for abuse to take place, too, because there’s just no supervision going on,” he said.

He agrees with Earl of AARP that facilities should not be held liable in every abuse case. Still, he said he hears from families who are worried about hidden harm in the system, beyond the initial “threat” or the one incident.

“If the person is removed from the facility, then there’s some level of comfort that the family knows, ‘OK, at least that person’s not going to hurt someone in that facility,’” he said. “So, we get the change we want initially, because they fired this person. But the issue, the real issue is, did they change the way that they do business? Right? Did they change the way that they hired people? Did they change the way they train people? Do they change the way they supervise people?”

Carmen Tilton, Vice President of Public Policy at the Texas Assisted Living Association, said its members have a responsibility to deliver “quality care in a safe environment” to residents and families.

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

In addition to state surveyors and inspectors, Tilton noted that ombudsmen and other local health and emergency officials conduct scheduled and unscheduled visits to these facilities “as often as they want to be there” to ensure operators are meeting the state’s standards.

Tilton pointed to other safeguards, such as legally-required criminal background checks and other screenings for staff. She said families and residents can put cameras in their rooms. Plus, facility staff could be held criminally liable for failing to report any suspected case of abuse or neglect at the community, Tilton added.

She went on to say, “Assisted living communities take safety seriously. Residents have choices when they select a community, and we encourage anyone looking for a community to ask questions about the steps a community takes to keep residents safe.”

Billy Mullens said he wants an even closer look at how long-term care facilities hire and vet employees, as well as industry policies and protocols for preventing abuse. For example, he wonders whether staff members should be allowed to close the doors to a resident’s room or be alone with them, and how much supervision or oversight staff receive.

“We had a camera, but a lot of the rooms in that place don’t. I don’t know how many people he cared for that night, the night before, the week before, the month before. Other facilities he’s been employed at? That I don’t know,” he said, of the man charged with his mother’s assault.

The case against him is pending in the Travis County courts. KXAN is not naming him or the facility involved in this case, in order to focus on the system as a whole.

Billy’s family moved his mom to another facility after the incident. They put up another camera — this time with a sign reading, “surveillance in progress.” He said his mom seemed calmer and more at ease there, even as her condition worsened. She passed away a few months later, in July 2022.

His family made the decision to sue the facility where the incident occurred.

“We’d like them to feel a financial penalty for not having taken care of my mom the way that they should have,” he said. “Also, and probably more importantly than that is, we’d like to see change. We’d like to help be agents of change.”

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.