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February 24, 2024 3:33 pm

Opinion

Records Reveal State Officials’ Response to Elder Eviction | Opinion

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Bill Lueders

The head of a state agency charged with enforcing Wisconsin’s rules regarding nursing homes and other residential care facilities was blindsided to learn that unknown others in state government had rescinded citations issued to a Milwaukee-area provider regarding the unlawful eviction of my then-97-year-old mother, Elaine Benz. 

“This is news to me that we withdrew the citations and other enforcement action,” wrote Otis Woods, administrator of the Division of Quality Assurance, in an internal email of “high” importance sent out early on April 27 email to other officials. “Was there some legal settlement that we agreed to in this case? We confirmed violations, issued enforcement action, they appealed (I think), and we withdrew everything? Please take a look and, if needed, I would like to meet about this matter.”

Woods was responding to his copy of a letter I emailed that day to his boss, Karen Timberlake, secretary-designee of the state Department of Health Services (DHS), which includes Woods’ division. My letter protested the DHS’s decision to rescind two citations against ProHealth Care Regency Senior Community New Berlin for violations of Wisconsin’s eviction protocols for nursing homes and care facilities. Elaine had lived at the Regency ten years before being evicted last October.

The email is among 547 pages of documents released to me last week from the Division of Quality Assurance in response to my open records request for internal communications regarding the decision to rescind the citations after the Regency filed an appeal. It is an issue about which I have written for multiple outlets since the eviction occurred. 

Woods’s startled email prompted a terse exchange between Kathleen Lyons, deputy director of the Bureau of Assisted Living, part of the DQA, and Hillary Holman, the bureau’s regional director of the southern region. Holman conveyed to Lyons — who, like Woods, was apparently in the dark — that a settlement agreement was finalized a week earlier.

The following day, April 28, at 7:08 a.m., Daniel Perron, the director of the Bureau of Assisted Living who had signed the document that fined the Regency $1,500 for its transgressions, sent an email to Wendy Daniels, executive staff assistant to Timberlake, “Hello Wendy, we have discussed with Otis and are coordinating a response.”

In the end, it fell to Woods to sign a May 19 response to my letter to Timberlake. In it, he defended the decision he was initially troubled to learn about. His letter, the records show, was written by others including Patricia Benesh, a policy initiatives advisor at DQA. (“The letter that Pat drafted was approved by the secretary’s office,” Woods wrote in one email. “It should go on our letterhead.”)

Woods, or whoever wrote his letter, gave no explanation for the DQA’s decision to back down, other than that “the facility provided additional information.” The letter concluded by telling me that “The Division of Quality Assurance appreciates your advocacy for the rights of residents in Wisconsin’s residential facilities.” I thanked Woods for this in my reply but added, “isn’t advocating for the rights of residents in these facilities supposed to be your job, not mine?” 

Woods would later be tasked with defending his division’s subsequent decision to switch out the documents posted on its online portal for complaint investigations. The original 12-page report, produced on Nov. 8 by DQA investigator Geralyn Spitzer, found that the Regency violated two sections of the state’s administrative code and that “the complaint was substantiated.” This was later replaced with a different document claiming the Nov. 8 inspection identified “no deficiencies” and “the complaint was not substantiated.” He said switching the documents was ”consistent with standard practice” so that “the published SOD accurately reflect[s] the current results” of a complaint investigation.

Nothing in the released records shows whether Spitzer agreed with the determination that her original findings were faulty. She did not respond to my email putting this question to her directly.

Scrambling to find our mother a new place to live

As I have documented in my articles on this matter for The Progressive, Wisconsin Examiner, Isthmus, the Milwaukee Journal Sentinel, Capital Times, Wisconsin State Journal, and other outlets, my family was informed by the Regency on the afternoon of Oct. 28, 2021 that our mother would not be allowed to return home the following morning after a brief stay at a physical rehabilitation facility. The Regency said her needs had gotten too great.

Elaine ended up spending an additional 19 days at the rehab facility, which was then in lockdown due to a COVID-19 outbreak, meaning my sister, Diane, was unable to visit her as she does almost every day. As we scrambled to find our mother a new place to live, I contacted the ombudsperson with Wisconsin Board on Aging as well as several officials within the Division of Quality Assurance. 

Again and again, I was told that state administrative code required the Regency to give at least 30 days advance notice before evicting a resident, unless the situation constitutes an “emergency,” meaning that the resident poses an immediate and documented threat to herself or others. 

I filed a formal grievance with the state on Nov. 5, disputing the Regency’s statements regarding Elaine’s level of requisite care. Three days later, Spitzer conducted her site visit and produced her 12-page report, concluding that the Regency had failed both to document that this was an emergency situation or to consult with Elaine and her family, as the law requires. (Elaine is now 98 and still needs far less day-to-day care than what the Regency is licensed to provide and claimed she was exceeding.)

On Feb. 1, Perron issued a Notice and Order with citations finding the Regency in violation of the state’s rules and imposing fines totaling $1,500. It was, I learned through an earlier records request, only the third time over the past three years that a provider in the Regency’s licensing category, which includes some 350 facilities, was fined for violating the state’s rules regarding the discharge of residents. 

Improper discharges of residents from nursing homes and other residential care facilities has been identified as a growing problem in Wisconsin and nationally. On Nov. 18, the day after we moved Elaine into another facility in a different licensing category, the Office of Inspector General for the U.S. Department of Health and Human Services issued a 40-page report on the problem of improper “facility-initiated discharges” that specifically cited the lack of enforcement as a contributing factor. 

On Feb. 19, the Regency appealed the citations, requesting a hearing on the matter with the state Division of Hearings and Appeals. But in April, before a hearing could be held, the state rescinded the citations. A stipulated settlement agreement declares the dismissal was made based on unspecified “additional information.” 

When I pressed for specific information that was provided to the state, I was sent a number of marked exhibits. But by the state’s own admission, none of these records articulate a defense of the Regency’s actions. Moreover, the documents that existed prior to Elaine’s eviction are marked as having been “received” by the DQA on Nov. 8, 2021, the date of the inspection conducted by Spitzer. 

In other words, this information was made available and reviewed prior to Spitzer concluding that the Regency committed two violations, a determination that was upheld on review by DQA staff prior to the citations being issued. That’s why Woods was so surprised to see them wiped away.

As I argued in my April 27 letter to Timberlake:

“What has happened here is an egregious failure on the part of DHS to enforce state administrative code against an especially flagrant violator. You are making it clear that providers of care to the elderly can violate the state’s rules with impunity. As such, the decision of the Department of Health Services to dismiss this case puts all of the state’s most vulnerable residents at unnecessary risk.”

Getting away with it

The Regency is owned by ProHealth Care Inc., a Waukesha-based “not for profit” provider that in 2020 pocketed $103 million in “revenue less expenses” and over a recent six-year period paid its president and CEO, Susan Edwards, nearly $19 million. At one point in my exchanges with state officials, I mused that ProHealth “has a lot of money and presumably a lot of clout,” which may have led it to believe it could get away with how it treated Elaine. 

So far, it has gotten away with it—and not just in terms of state fines.

On April 16, an attorney representing the Regency offered to pay my family a settlement of  $7,865 “to resolve this matter.” The amount is roughly equivalent to the $7,500 we paid for those 19 extra days at the rehabilitation facility, while also paying rent to the Regency for an apartment from which she was barred. On April 25, the same attorney notified an attorney representing Diane and me that “the state has withdrawn the citations.” The Regency’s settlement offer to us was also subsequently withdrawn.  

After Woods’s initial shocked response, the released records show, efforts were made to conduct communications regarding this issue in person or by phone, which avoids creating a paper trail subject to records requests.

“Please give me a call to discuss,” wrote Perron on May 3, in response to an inquiry from a senior quality assurance specialist within the Bureau of Assisted Living who had read my articles on the eviction and was curious as to whether the matter offered any “learning opportunities.” (Yes, don’t create email records when you’re trying to cover things up.)

The records show that Timberlake was personally involved in exchanges regarding this matter, which DHS and DQA staff seemed to regard almost entirely as a public relations issue. At no point does anyone express any concern about elderly people who are evicted from their homes or ask whether the decision to dismiss the citations after the Regency complained was made for valid reasons.

Almost the entire content of an email exchange on May 18 between Timberlake and Woods in response to an inquiry from a Wisconsin State Journal reporter is blacked out. Benesh, the DQA policy initiatives advisor who has helped me with records requests, said on Friday that she would try to get a response to my question about why this information was blacked out but has not yet done so. 

In a May 26 email to Woods and others, T.R. Williams, assistant deputy secretary to Timberlake, said that she and Timberlake discussed the matter and wondered whether it might be a good idea to set up a meeting with me. She suggested focusing on the “set of facts” in the “additional information” the DQA provided that resulted in the withdrawal of the citations. “At least that’s how we would set up the call,” she wrote, “recognizing we can’t control exactly what is said.”

Williams subsequently sent me a letter, dated June 15, offering to meet. I asked to hold off until after I received a response to my open records request, filed June 8. The released records were not provided until July 28. A meeting between Williams and a DHS attorney and Diane and I has been set for next Monday.

A final item of interest among the 547 pages of released records is my May 31 request to Leanne Bergstrom, a constituent relations specialist with DHS, asking whether there was any opportunity for me to appeal the decision to dismiss the citations against the Regency. She passed this on to Timberlake’s office, which passed it on the Woods, who replied, “No he cannot because he is not the one to whom a violation was issued or any state action taken.”

Only the providers that receive citations for violating the state’s rules regarding the treatment of vulnerable residents have the right to appeal.

This story was written by Bill Lueders, editor-at-large at the Wisconsin Examiner, where this story first appeared.