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July 23-29, 2008

Feds Allege Constitutional Violations at State-Run Nursing Home in Columbia BY ERIC WARD

esidents of a Columbia nursing home that the S.C. Department of Mental Health operates have suffered preventable deaths, injuries and illnesses because the department failed to provide them with adequate care.

A residential pavilion at the C.M. Tucker Jr. Nursing Care Center, which is located at 2200 Harden St. in Columbia. Photo by Graeme Fouste

Running afoul of generally accepted professional standards, the inadequate care violated rights of the residents outlined in the Constitution and federal law. Those are the conclusions the U.S. Department of Justice reached — often in stark, ghastly terms — after investigating practices and conditions at the C.M. Tucker Jr. Nursing Care Center. The Department of Mental Health disputes the allegations by the Department of Justice (DOJ) and asserts that the care provided at the Tucker Center meets or exceeds generally accepted professional standards. The DOJ account of Tucker, detailed in a 36-page report dated May 6, probably would cause the average person to feel disturbed and avert their eyes. Scathing, it paints a picture of a virtual house of

horrors where standards of care were so lacking that even some residents’ basic food and water needs went unmet. “We find that residents of Tucker suffer significant harm and risk of harm due to inadequate nursing, medical and mental health care,” the report says. Also described in the document as inadequate at the facility: nutrition and hydration, behavioral programming, medical and nursing documentation, protection from harm, activities for its occupants and sanitation. “As a result of these deficiencies, Tucker residents have suffered preventable injuries, illnesses and deaths,” the DOJ says. Answering those charges, the Department of Mental Health (DMH) pushes back vigorously. The DMH “takes strong exception to

cover the assertion that Tucker residents ‘have suffered preventable injuries, illnesses and deaths,’” the agency says in a July 17 statement provided to Free Times. For the most part, the case summaries the DOJ cites are erroneous or incomplete, the statement reads. “Ironically, when the full and accurate facts are reviewed, many of the cases chosen by the Department of Justice serve to exemplify the generally good care provided to residents at Tucker Center,” it says. Tucker sits at 2200 Harden St. in the heart of the city, providing long-term care to elderly people, many of whom suffer from severe physical and mental diseases and disabilities. Besides implicating the DMH, the Department of Justice’s findings raise serious questions about accountability and oversight of the state agency and the S.C. Department of Health and Environmental Control (DHEC), which licenses public and private nursing homes in the state, inspects them annually and issues reports based on the inspections. The questions about Mental Health and DHEC relate to how the agencies are governed and where the buck stops with them.

homes when inspecting them, according to a May 15 report in The New York Times. Meanwhile, ominous news out of Tucker keeps coming. Most recently, 87-year-old Tucker resident Theodore Howell was found dead in the early morning hours of July 17, hanged with a necktie. “He was unresponsive when they found him,” Richland County Coroner Gary Watts says, adding that he is unsure whether Howell committed suicide. “We’re investigating it heavily.” Watts says Tucker and the DMH are cooperating. Likewise, the Department of Justice report thanks the state and Tucker for their “complete cooperation and assistance” in the DOJ probe. Partly because of that helpfulness, the federal agency’s findings surprised and disappointed the DMH, says the agency’s general counsel, Mark Binkley. One of the big questions the DMH faces is what happens next. The DOJ investigated C.M. Tucker under the federal Civil Rights of Institutionalized Persons Act. The DOJ says the law gives Justice authority to pursue a remedy “for a

July 23-29, 2008

divergent explanations for a deadly serious situation. Often in such circumstances the truth lies somewhere in the middle. Is that the case with Tucker? Probably, says Gloria Prevost, director of Protection and Advocacy for People with Disabilities, a statewide private, nonprofit organization with federal and state authority to carry out its mission. The sheer size of C.M. Tucker raises concerns, Prevost says. Serving about 400 residents, Tucker is extraordinarily large compared to most nursing homes in South Carolina and across the nation, she says. “It’s very sad in this day and age that there are places that large.” In that regard, the DOJ’s depiction of Tucker reads like something out of America’s muckraking era of the late 19th and early 20th centuries, when investigative reporters, novelists and critics exposed hideous conditions in certain prisons, factories and other locations. The treatment in this country of people institutionalized with mental and physical disabilities has come a long way from the muckraking period.


obstructive pulmonary disease. In some instances, Justice characterizes the allegedly woeful care at Tucker as egregious, using that term in reference to a resident who, as a result of inadequate pain medication, was found “‘groaning in the fetal position’ as death approached. Another resident, dying of [spreading] colon cancer, vomited blood several times in the hours before his death, but no nausea medication was requested by the nurse on duty. Moreover, even though a tranquilizer had been ordered for this resident, it was not administered, a violation of generally accepted professional standards.” In addition, the DOJ holds that the Department of Mental Health fails to serve Tucker residents in the most community integrated setting possible, leading to some people being confined to the facility unnecessarily. In summary, the DOJ says, “We conclude that numerous conditions and practices at Tucker violate the constitutional and federal statutory rights of its residents.” Those rights include adequate health care under due process provisions of the 14th Amendment, and protections outlined in

“It’s very sad in this day and age that there are places that large.” — Gloria Prevost, director of the statewide nonprofit Protection and Advocacy for People with Disabilities, on the local C.M. Tucker Jr. Nursing Care Center, which houses about 400 people

As for the inspection reports, they are public documents just like DHEC’s write-ups on examinations of food-service establishments the agency conducts at least once yearly. Dubbed restaurant report cards, they are available on the DHEC web site. “They are searchable by address, county and facility name,” says Adam Myrick, a spokesman for the agency. However, DHEC’s nursing home inspection reports, which can help people find quality care for their elderly loved ones and avoid troubled facilities, are not accessible online. Free Times asked DHEC for copies of its inspection reports on Tucker for 2005 through 2008, if one has been compiled for this year. Without those documents it is almost impossible to compare what if anything DHEC turned up with what the DOJ found. But DHEC said it would release them only via a written request pursuant to the state open-records law, the S.C. Freedom of Information Act. Such a request is pending. Among other concerns with DHEC, the federal Government Accountability Office conducted an inquiry in which it found that South Carolina was among the states most likely to miss serious problems at nursing

pattern or practice of conduct that violates the constitutional or federal statutory rights of nursing home residents” in a public facility. The feds cannot fine or otherwise punish Tucker or the DMH. But the DOJ can take the state to federal court and try to convince a judge to order South Carolina to improve care at the nursing home. Both parties say they want to avoid that outcome. “In general, if a state is responsive to our findings, we attempt to work out a mutually agreeable settlement to resolve the unconstitutional conditions identified in our findings letter,” DOJ spokeswoman Jamie Hais says in an email. “The type of settlement we enter depends upon a number of factors, including the severity of the issues we uncovered and the jurisdiction’s cooperation and ability to resolve the problems.” Says Binkley, “I’m optimistic we can resolve this without litigation.” With that in mind the DMH is talking with Justice, he says.

Whom to Believe? For the objective observer, the conflicting federal and state accounts of Tucker are analogous to two siblings offering wildly

Still, the DOJ investigation suggests that vestiges of it linger. The feds charge that the deaths of four residents at C.M. Tucker might have been avoided but for substandard care. The DOJ report does not identify them by name. One of them, a man, died of pneumonia at a local hospital after suffering “inadequately and untimely assessed swallowing problems, improper diet and untreated loss of 20 percent of his body weight over a fourmonth period” at Tucker, the report reads. Poor care of the man deprived him of “a safe method by which to eat, the muscle strength and stamina needed to adequately chew and swallow safely and, ultimately, the ability to cough effectively to clear his lungs and recover” from the pneumonia, it says. In an equally long rebuttal to the DOJ report — a 36-page response dated July 9 and signed by general counsel Binkley — the DMH refutes the feds’ charges point by point, giving little ground. Regarding the man’s death, Mental Health says he “did not have a swallowing problem so a regular diet was not improper and the bulk of his weight loss occurred while he was in a local hospital, from which he was discharged 10 days prior to his death.” His passing, the DMH contends, resulted from respiratory failure stemming from chronic

the Civil Rights of Institutionalized Persons Act and the Americans with Disabilities Act, according to the DOJ. Running defense on the alleged egregious case of inadequate pain medication, the DMH says Tucker has been at the forefront in pain treatment and end-of-life care. The nursing home maintains a pain management quality improvement team that has developed policies and other measures tailored to meet residents’ needs in this area, as well as a hotline to report pain management concerns, Mental Health says, adding that: • Tucker has a contract with the local Hospice Care of Tri County company, which provides individualized, 24-hour services to the facility’s terminally ill residents. • The number of Tucker occupants receiving pain medication around the time of the DOJ probe was more than twice the state benchmark and is increasing while the state standard remains the same. As a general endorsement of Tucker, the DMH notes that the nursing home is certified by the Centers for Medicare and Medicaid Services, a requirement to receive payment from those federal programs. Additionally, Mental Health points out



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that the Tucker Center is accredited by the Illinois-headquartered Joint Commission, which describes itself as “the world leader in evaluating the quality and safety of care” at some 15,000 health care facilities in the United States. The Joint Commission last conducted an on-site inspection of Tucker in July 2006, four months before the DOJ first did. The Department of Justice also accuses Tucker of inappropriately using restraints — physical, mechanical or chemical — to control the behavior of some residents. “Thus, restraints are used for the convenience of staff and not for emergency intervention to protect individuals from risk of harm, in violation of residents’ federal rights,” the Justice report says. The DMH disagrees, saying restraint use at Tucker is below the national average, a fact that “evidences the facility’s commitment to ensure residents the highest practicable level of physical freedom of movement.” Another DOJ charge relates to pressure sores. Also called bed sores, they result from a lack of blood supply and are common in people who are bedridden. “We found that Tucker substantially departs from the standard of care for avoiding pressure sores,” Justice says. “Several Tucker residents suffered severe stage [four] pressure sores that should have been prevented with appropriate care, including regularly turning and repositioning the resident.” The DMH contests that allegation, too. “Unlike the majority of community nursing homes, Tucker Center has had a fulltime certified wound care nurse since 2003,” the state agency counters. Not only that, the occurrence of pressure sores at Tucker is below the national average, “supporting our belief that the wound care program at Tucker Center is vigilant, responsive and highly effective,” says the DMH response.

Carolina. “Anytime you have a situation like that there’s not going to be as much accountability as there should be,” he says. Sanford has proposed making both the DMH and DHEC a part of the governor’s Cabinet, mainly for greater accountability and cost savings. In the federal Government Accountability Office (GAO) inquiry into state nursing home inspections, South Carolina was one of nine states that failed to catch serious problems in more than 25 percent of the inspection surveys the GAO analyzed, according to The New York Times story. Regardless of the veracity of the DOJ

says the vastness makes providing nursing home residents with activities in such circumstances difficult and it often doesn’t happen. That is one of the few DOJ points that Mental Health concedes. “Tucker Center agrees with the premise by Justice that more opportunity for therapeutic and social activities is desirable,” the state agency’s response says. Similarly, the DMH concedes that Tucker might not be the most appropriate setting for some of its residents. However, Mental Health says, “Some residents at Tucker have challenges which no other nursing

Another pavilion where Tucker Center residents live. Photo by Graeme Fouste

Accountability Lacking The DOJ report is addressed to Gov. Mark Sanford. In the document, Justice says it inspected Tucker in November and December 2006 with expert consultants in the areas of protection from harm, environmental health and safety, geriatric medicine, psychiatry and nursing. DOJ personnel also visited the nursing home in September, without experts. The investigation included interviews with Tucker administrators, staff and residents and a review of reams of documents from the facility. For his part, Sanford took the allegations very seriously, says his spokesman, Joel Sawyer. “And we found its contents very unsettling,” Sawyer says. “DMH has already acknowledged that some of what is in the report needs to be addressed.” Yet because of the structure of state government, the governor can do little about Tucker, as neither the DMH nor DHEC are Cabinet agencies. Instead, they answer to, respectively, a commission and a board. Responding to questions, Sawyer says five or six agencies can be involved in nursing home regulation and accountability in South

report, even the hardest heart breaks at the C.M. Tucker Jr. Nursing Care Center. In various ways it has long been said that the moral standing of a society can be judged by how that culture treats its most vulnerable members. By that standard, even if Justice’s allegations are untrue, South Carolina has a long way to go to when it comes to Tucker. Returning to the issue of the size of the facility, some people who look upon it might say it warehouses elderly folks. Protection and Advocacy director Prevost

home in the state is willing to address, despite the resident meeting long-term placement criteria. These challenges include Huntington’s disease, head and spinal cord injuries and chronic mental illness.” Challenges is an understatement. Huntington’s disease is a severely disabling central nervous system disorder, symptoms of which include uncontrollable body movement. Says the DOJ, “Tucker is the nursing home of last resort for hundreds of patients with long-term psychiatric illnesses.”

Says Mental Health, “Alternative community placements for these residents are very limited or nonexistent.” Very true, Prevost says. “But I think that is not acceptable in this day and age.” She says Protection and Advocacy has not received calls about abuse and neglect at Tucker in the recent past. But, Prevost says, “We have gotten calls from people [residing at Tucker] who have said I would like to live in the community.” The organization is working with some of the residents toward that end, she says, adding that getting people out of Tucker who don’t need to be there is one of her biggest concerns about the nursing home. As a few of the cases mentioned indicate, sometimes the Tucker Center is where people go to die. “They are depressing places,” Prevost says of nursing homes. The aesthetics of Tucker don’t exactly help matters — a series of nondescript, onestory tan brick buildings covering nearly 50 acres across Harden from the former State Hospital campus. Grassy grounds lined with trees and shrubbery add a vibrant element to the Tucker environment, but there’s no escaping the nature of the place. Drive past one of its three residential pavilions and one might catch a glimpse, through large glass doors and windows on the front side, of a roomful of elderly people sitting in wheelchairs, some with their heads sagging. Breezy quiet blankets Tucker around lunchtime on July 16. Employees in variously colored nursing garb meander here and there. A series of roads — some needing paving, all reading speed limit 20 — crisscross the grounds. A security detail patrols the area in an unmarked gray squad car. Outside the Roddey Pavilion at the eastern edge of Tucker, U.S. and South Carolina flags flap in the breeze. Inside Roddey is an enclosed admissions and information desk with a sign taped to a sliding-glass reception window. The sign displays a State Law Enforcement Division abuse hotline number and internal numbers to call to report abuse at each of the pavilions. Opposite Roddey an ambulance idles in front of the E. Roy Stone Jr. War Veterans Pavilion, home to people who have served their country in arms and the first building one encounters when turning onto the Tucker property. For some residents of the nursing home, an ambulance ride out of Tucker was their last journey in this life. But whether that was because of negligent care at the facility or simply a result of natural causes remains in question. What seems indisputable — what breaks a heart — is the indignity of warehousing the least of these in their twilight years. Let us know what you think: Email or

Death at CM Tucker