Rape of 95-year-old with dementia raises questions about Ohio’s assisted-living regulations for staffing, training

The number of residents in assisted living has grown dramatically in Ohio, fueled by those with serious memory issues. (Andrea Levy, Advance Local)

By John Caniglia, The Plain Dealer

CLEVELAND, Ohio — The 95-year-old dementia patient lay asleep in her room at Close to Home assisted living in Middletown, unaware of the danger at her door.

Minutes after 5 a.m., Gary Earls snuck in, grabbed the woman, pinned down her frail hands and sexually molested her, according to records and interviews.

She wailed in pain.

One of two aides caring for the center’s 32 residents that day heard the cries and ran to the woman’s room. She found Earls, a resident who suffered from a cognitive disorder, on top of the woman.

Afterward, Earls, 72, returned to his room across the hall, seemingly unaffected by what he had done.

The woman appeared to have no idea of what took place, telling an aide simply: “That man came to visit. He is real nice."

She died a month later, her family attributing her death to the attack.

The case underscores one of the most contentious issues in the care industry in Ohio: The number of assisted-living centers has increased 181 percent in the state since 1995, with much of that growth fueled by those with serious memory issues. A national study by researchers at University of North Carolina suggests seven of 10 residents in assisted living have some degree of cognitive impairment.

But regulations designed to keep residents safe remain vague and outdated, according to a Plain Dealer analysis of hundreds of pages of regulations, safety reports and interviews with researchers.

Ohio is not alone. States across the country lack strict staffing and training requirements for assisted-living centers, and lax regulations have prompted advocates to push for federal oversight of the facilities.

That option, however, clashes with the interests of facility owners and operators, who say they know residents’ needs the best.

Because there is no federal monitoring, it is impossible to determine the number of serious incidents of abuse and neglect across the nation, as no one agency collects that data.

Wrongful death alleged

The oldest daughter of the 95-year-old woman said her mother became withdrawn after the attack.

“After it happened, my mother just lost her will to live,” she told The Plain Dealer recently.

“She didn’t want to do anything. She didn’t even open her eyes. She just laid there, curled up."

She developed pneumonia and her organs failed.

She died Dec. 30, 2017.

Eight months later, her estate filed a wrongful-death lawsuit against Close to Home. In it, the family’s attorneys, William Eadie and Michael Hill of Cleveland, claimed that the facility failed to ensure the woman’s safety and engaged in "a systemic practice to understaff the Close to Home facility to maximize profits at the expense of its residents’ care.”

The lawsuit highlights a key difference in long-term care: Nursing homes are regulated by the Centers of Medicare and Medicaid Services. Assisted-living centers are not.

The reason is simple. Nursing homes rely mostly on taxpayer-funded Medicaid, while assisted-living centers are mostly private pay, with residents doling out about $4,000 a month on average, nationally. In California, for instance, costs are an average of about $5,000 to $7,000 a month.

So instead of federal regulation, states oversee the facilities; each has different requirements.

Critics say Ohio’s main staffing requirement for assisted-living centers is ambiguous: Facilities must have a "sufficient number” of aides and nurses present to meet residents’ needs.

It has no staffing ratios, meaning there are no specific requirements for a set number of aides to care for a set number of residents.

“This is a huge problem,” said Charlene Harrington, a professor of nursing at the University of California at San Francisco and a national expert on long-term care. “Many people in assisted living are as sick as people in nursing homes. But assisted living has far fewer staff members.”

And as more people require greater care for memory and cognitive issues, the challenges for direct caregivers increase. Yet the state continues to require about 20 hours of training for a caregiver to work with residents suffering memory loss.

The debate is expected to grow more contentious in the coming years, as the number of elderly in Ohio spikes and more people move into assisted living.

In 1995, Ohio had 265 assisted-living centers. Today, it has 745, according to figures from Miami University’s Scripps Gerontology Center and the Ohio Assisted Living Association.

In that 24-year span, the number of people living in assisted living has grown from about 6,000 to about 35,000, researchers said. Nationally, there are about 1 million people in assisted living.

“There used to be a gas station on every corner; now there is an assisted-living center on every corner,” said Charlene Sufka, a member of Elderly Advocates, a Cleveland group that spotlights the concerns of the elderly.

”Some people in assisted living are too ill, too frail and just need more help than they can get there."

Gary Earls was one of them.

A troubled man among the vulnerable

By all accounts, Earls’ troubles began long before he moved to Close to Home in October 2016.

Between 1990 and 2015, Earls was convicted of nine misdemeanors, including two drunken-driving offenses, improperly handling a firearm, peddling food stamps and possessing a crack pipe, records show.

State officials redacted Earls’ specific cognitive impairments in their reports, but, according to police reports and interviews, his condition hindered his ability to reason and made him easily frustrated and angry.

“This clearly was a man who should not have been around vulnerable residents,” said Eadie, the Cleveland attorney.

An attorney for the assisted-living facility did not return phone calls seeking comment. Sharon Hartwig, the owner of Close to Home, could not be reached./b>

Within a year of moving to the facility, Earls exhibited disturbing behavior. At 6:45 a.m. on Oct. 12, 2017, a month before he molested the 95-year-old woman, an aide walked into a different woman’s room and found Earls with his pants down.

He stood near the woman’s bed as she slept, according to an investigative report by the Ohio Department of Health.

Earls denied touching or harming the woman. A local hospital later performed a mental health evaluation of him but found "there were no indications to keep him [at the hospital],” according to the state report.

He soon returned to Close to Home and was placed in a room across the hall from the 95-year-old woman.

“Their way of solving the problem was moving him to a room across from our mother,’’ said the woman’s oldest daughter.

A mother, a victim

The 95-year-old woman raised five children and worked 30 years at a small store in Middletown.

Her children said she remained independent at 80, but she had slowed down, and they worried about her safety. She moved to Close to Home in 2007.

After a while, she began to decline cognitively. By about 2010, her dementia had become severe, and she needed total care, from bathing and going to the bathroom to eating and moving out of bed.

The facility, however, continued to care for her. It never told the family it could not handle her greater needs, her children said.

The children said the facility changed, as well. There was high turnover among staff. The center was often shorthanded. The family’s lawsuit claims that the woman was “frequently left in soiled undergarments’’ because of understaffing.

The collapse of a criminal case

Weeks after Earls snuck into the 95-year-old woman’s room and attacked her, a Butler County grand jury indicted him on two counts of rape.

The case, however, never got far.

Earls’ defense attorney, Dennis Adams, sought a mental-health examination for his client. A judge found Earls unable to stand trial, based on his mental condition.

“He definitely had memory issues," Adams said.

Earls has been moved to a secure mental-health facility in Cincinnati, where he is expected to remain.

The report by the state health department, the agency that oversees assisted-living centers, admonished Close to Home, saying the “facility failed to prevent the sexual assault of one cognitively impaired resident."

But the state stopped short of fining the facility. A spokesman for the department said Close to Home avoided penalty because it quickly worked to make sure residents were safe, including training and retraining staff on sexual abuse.

The family’s last chance at justice, it says, is its wrongful-death lawsuit. The woman’s children filed it in August 2018, and it is winding its way through Butler County Common Pleas Court, with a trial date set for March 2020.

The attack, the subsequent investigation and the legal fight have made the woman’s children wary of the care in assisted-living centers. They say change is necessary.

“We need stricter rules for any facility that cares for the elderly," the woman’s oldest daughter said. “The people in those centers need advocates because they can’t advocate for themselves.

“Until we hold these places accountable, nothing will happen."

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Rape of 95-year-old with dementia raises questions about Ohio’s assisted-living regulations for staffing, training