Elaine Benz and daughter Diane Roth
Elaine Benz, left, and her daughter Diane Roth.
Last week my sister, Diane, and I met with two officials from the Wisconsin Department of Health Services, at their invitation, to discuss the state’s decision to dismiss two citations it had issued against a Milwaukee-area senior care facility that last fall evicted our then-97-year-old mother, Elaine Benz.
It was the first time that anyone from our family had met with anyone from DHS. Present for the state were T.R.Williams, assistant deputy secretary of DHS, and Jeanette Lytle, attorney supervisor in the DHS Office of Legal Counsel.
To begin, I would like to thank both of these officials for their time, compassion and professionalism, and the office of DHS Secretary-Designee Karen Timberlake for making it happen. I especially want to thank Williams, who prior to the meeting had graciously accepted my apology for errors I made, including misidentifying her gender, in a brief mention of the then-upcoming meeting in the initial version of an opinion column that ran Aug. 3 in the Wisconsin Examiner, Isthmus and The Progressive. These were the first actual errors that I am aware of in my voluminous reporting on Elaine’s eviction, but they were serious errors and should not have happened.
I would also like to thank Williams for staunchly defending DHS staff against the negative attention I have showered on this situation. She said that my “intuition” has always been that there is something “nefarious” regarding how Elaine’s case was handled, when in reality these were hard-working state employees doing what they thought was right.
“I’m also [speaking] on behalf of the public servants who you all called out with the power of the pen, who I know have a lot of complicated family and personal things themselves,” Williams told me. “I get this was a sad thing that happened and it’s easy for you to assume that it has to be that people don’t like me or my mom, that they have to be [those] people. And all I’m telling you is the people I work with, all of the people on that thread, every single person whose name you evoked in your articles, are not those people.”
That is a fair criticism.
My family and I do think that what happened here is, if not nefarious, then at least bad and wrong, and we have not been shy about saying it. I have always assumed that the people involved, especially at the frontline level, were trying to do the right thing, and were overruled by others. But they have never said so themselves, even as I have dragged them into the spotlight as players in what I have portrayed as a betrayal of my family by the state. They were named and they felt blamed.
And for that I’m sorry, sorry that their already difficult jobs, which they do because they want to make a positive difference in people’s lives, have been made more difficult by my reporting on this topic, and my family’s demand for answers. As Williams, to her credit, made perfectly clear, we aren’t going to get any more answers, at least not from the state.
She told us right upfront: “The intention of this conversation is not to change your mind. The intention of the conversation is to be clear on where we disagree and the terms of those disagreements.”
And that it was.
The citations against the ProHealth Care Regency Senior Community New Berlin were issued in February of this year, imposing fines totalling $1,500, based on an inspection that had been conducted on Nov. 8, 2021, just days after our mother was not allowed to return to her home of 10 years, one day to the next.
The state officials I spoke to back then all assured me that the law requires facilities in the Regency’s licensing category to give 30 days notice before kicking someone out, absent an emergency. An inspector from the Division of Quality Assurance concluded that the Regency had violated state administrative code in two particulars, including its false claim that our mother’s condition presented an “emergency” requiring her immediate discharge.
In fact, the inspector found: “The care needs the provider used as evidence of an emergency termination were the same care needs [Elaine] required prior to a temporary transfer for rehabilitation.”
The Regency appealed and the state decided, without ever holding a requested hearing, to rescind the citations. The inspector’s report on the DQA’s web portal tracking enforcement actions in nursing homes and other senior care facilities (more on this later) was replaced with a different document claiming the Nov. 8 inspection identified “no deficiencies” and “the complaint was not substantiated.”
The state says this reversal occurred because of “additional information” provided by the Regency. But what this information was has never been satisfactorily explained to Diane and me, who hold power of attorney for our mother’s health care. Our meeting with Williams and Lytle, while billed as a way to “ensure that you have the information you need and have requested,” did nothing to change that.
“The information we gave you is what we have,” Williams told us, noting that we received the medical records that the Regency provided regarding my mom. Our contention is that this does not explain the state’s decision to rescind the citations, since apparently all of the records that existed up until the time of the inspector’s visit were provided to the inspector, who concluded that the rules were broken, a determination upheld on review.
Here’s a brief exchange from a transcript based on a recording I made of the meeting with the state’s knowledge and presumed consent:
Bill Lueders: “All you’ve said is that there’s additional information.”
Williams: “Yeah.”
Lueders: “But you haven’t shown us …”
Diane Roth: “You haven’t shown it! We never saw any additional…”
Williams: “And you won’t. Because we gave you the reason why. That ‘additional information’ wasn’t anything we could provide to the two of you.”
Roth: “What?!”
Williams: “I know you don’t like it.”
This part of the conversation ended with Williams saying, “Information was given, you just thought it was insufficient.” Lytle clarified that we were in fact given the “entire file” that the Regency provided to the state.
So what was the “emergency” that in the state’s view made it perfectly OK for the Regency to tell us on a Thursday afternoon that we had to find someplace else for our mother to live as of the following morning? Looks like we’ll never know.
Another of my questions, which I have asked several times, was whether the DQA’s frontline staff agreed that they had got it wrong and that the citations should have been rescinded. Williams declined to shed light on this, other than to say that the matter “went through all of the right processes” and that “we came up with the decision that we did.” She said it was “not appropriate” for me to keep asking. I won’t.
Diane wanted to know why it didn’t seem to matter to the state that some of the claims made by the Regency in support of its decision are, we believe, demonstrably false. Like its claim that our mother required more than 28 hours of direct care per week, well more than she has ever received, even to this day. (Elaine is now 98 and living in a new home.) Williams also batted this away: “I don’t work for the Regency so I can’t speak to that.”
We met for 40 minutes, and that’s how it went. “Can I ask you something?” I asked at one point.
“Sure,” Williams replied.
Me: “Is there no possibility that you got this wrong? Is there no possibility that, unwittingly or with the best of intentions, you did the wrong thing here by dismissing those penalties, that those penalties were issued because they were deserved, those penalties were issued because your laws were broken, and the determination to that effect was reached fairly and squarely, and the decision to back away from it was the wrong thing to do? Is that not even a possibility?”
Williams: “If I were to answer that leading question, I would say, so why can’t it be the reverse?”
Whatever the state of Wisconsin is paying T.R. Williams to do her job is not enough.
Repeatedly throughout the conversation, Williams made reference to our “options” to challenge the department’s decision in court. But, as she confirmed afterward, this meant seeking to invoke a hearing process that the state contends, probably correctly, is not something we have the right to invoke. In other words, there is no way at all for us to appeal the department’s decision.
But Williams did say that, beyond this particular case involving Elaine, which DHS considers closed, the state would be open to having a larger “conversation about policy or legislative advocacy,” if we have ideas for addressing the problem she admits does exist regarding the improper evictions of elderly people from their homes.
I would like to take her up on that. Here are three things the state Department of Health Services could do, on its own authority, to make things better:
1. Improve the state’s complaint-tracking website. The Division of Quality Assurance runs a Provider Search database on actions involving nursing homes and other long-term care facilities, but its functionality is minimal. There is no way to do searches by category of offenses or to obtain other aggregate information. You have to enter the name of an individual provider for each search. (In fact, with regard to my mom’s former home, the database misspells the name of the provider as Pro Health instead of ProHealth. If you don’t use this misspelling, nothing comes up.) This web portal is in need of substantial improvement. And even if the status of a case changes, all records regarding the complaint should remain available through this portal.
2. Educate residents and families on their rights. The state, recognizing that improper discharge is a growing national problem, should be proactive in advising residents of regulated facilities of their rights and facilities’ obligations under state and federal law. Residents and families should be urged to take steps to protect themselves, including: ask providers upfront about when and under what circumstances (falls, incontinence, dementia) a resident may be evicted; prepare an eviction-defense plan ahead of time, and line up potential private lawyers; and carefully document everything regarding a potential eviction, from medical records to communications with staff. They should also know that national experts recommend that residents refuse to leave when told to do so, instead insisting on due process.
3. Enforce the existing rules and regulations in a public way. I learned through an open records request that the situation involving my mom was only the third time during 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. While in her case there will be no enforcement, in the other two cases and others that, sadly, are sure to come, the state could and should not just take appropriate enforcement action but call public attention to the fact that it has done so.
As Diane and I stated at the meeting, all that we have wanted is for some good to come out of this situation — for the response to what happened to our mom to make it less likely that it will happen to others. Maybe that is still a possibility.
Bill Lueders is the former editor and now editor-at-large of The Progressive.
