Weak Oversight Lets Dangerous Nurses Work In New York
by Daniela Porat, Rosalind Adams and Jessica Huseman for ProPublica, April 7, 2016, 4 a.m.
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Thomas Maino knew he was going to die. Suffering from serious ailments, the 93-year-old veteran had rejected invasive treatments and asked only that he be made comfortable after he was admitted to a Syracuse nursing home in November 2008.
But on a snowy Saturday morning the following January, his moans could be heard down the hallway.
Over the next eight hours, coworkers reported to the nurse in charge of Maino’s unit that he needed pain medication. That nurse, Maura Quinn, gave him only Tylenol and never alerted the doctor. Other nurses told her Maino was in agony, but she ignored them, even when his moaning turned to yelling, seven staffers at the home later testified in depositions taken during an investigation by the state Attorney General’s office.
“Oh great, now people are going to tell me how to do my freaking job,” Quinn said when a nurse from a nearby wing left a note for her about Maino, according to one deposition.
Maino died that evening.
After an administrator reported the incident to New York nursing home regulators, Quinn was fired and, in December 2010, convicted of a misdemeanor for providing Maino with inadequate care. The state Attorney General’s office reported Quinn to the Office of the Professions, the agency that licenses and disciplines nurses, when she was sentenced two months later.
But it would take another three years for the Office of the Professions to suspend her from nursing. By then, the agency had learned that Quinn lied on her initial licensing application, failing to disclose a 1988 conviction for drug possession, and that she was convicted in 2012 of driving without a license — both grounds for more disciplinary action. The agency finally suspended Quinn’s nursing license for three months in May 2014.
Over the past 15 years, nursing boards across the country have taken steps to tighten oversight of nurses, screening applicants more extensively before issuing licenses and instituting swifter, tougher sanctions for problem licensees.
Not New York.
Unlike many states, New York does not require applicants for nursing licenses to undergo simple background checks or submit fingerprints, tools that can identify those with criminal histories and flag subsequent legal problems. And it often takes years for New York to discipline nurses who provide inept care, steal drugs or physically abuse patients.
A ProPublica review of hundreds of disciplinary records, arrest reports and court filings shows New York’s system for overseeing nurses is deeply flawed. Among our findings:
The Office of the Professions often fails to act when it is informed that other states or even other New York agencies have disciplined New York nurses. One example: The state health department penalized a nurse in early 2014 for administering an overdose of insulin that nearly caused a patient’s death, but the Office of the Professions has taken no action against her license.
Though the Office of the Professions can take immediate action against nurses accused of endangering the public’s health or safety, it has not done so, even in egregious cases. After a nurse in the Bronx was caught sexually assaulting a patient in February 2014, the agency didn’t revoke his license for more than a year and a half, records show.
New York disciplines nurses far less often than other large states. In 2014, the Office of the Professions disciplined fewer than 350 licensees, which works out to 1 in 1,190. In the same year, Ohio disciplined more than 1,600 (1 in 153), and Texas disciplined almost 2,300 (1 in 167). In fiscal 2014, California disciplined over 1,600 nurses, roughly 1 in 325.
“As a professional nurse who is registered in the state of New York, I’m appalled,” said Donna Nickitas, the executive officer of the nursing PhD program at the Graduate Center of the City University of New York. “This is [about] the health and welfare of the general public.”
The Office of the Professions is an arm of the New York Department of Education. In response to these ratios, a spokeswoman for the education department said that New York’s numbers only reflected actions that needed the approval of the Board of Regents. The department did not respond to multiple requests to quantify or elaborate on this.
Even inside the Office of the Professions, concerns have grown so pronounced that one investigator wrote to New York State Sen. Michael Venditto last July about the consequences of not performing background checks on nurses, as well as delays in disciplinary action, letters obtained by ProPublica show. The investigator cited one nurse who was licensed despite a violent criminal history because he never reported it on his application. Another nurse maintained an active license for three years while she awaited trial on charges of selling prescription drugs, the investigator wrote.
In response to a letter from Venditto about the investigator’s concerns, New York State Commissioner of Education MaryEllen Elia said in October 2015 that her agency would support background checks and fingerprinting for nurses if state legislators proposed a measure requiring them. (They have not done so.)
But Elia cited an “extraordinarily high” success rate for the investigations completed by the Office of the Professions. “We are very proud of the work the office does and believe that New York’s licensed professionals are among the safest in the country,” Elia wrote in a second letter in December 2015. She did not clarify how she was defining success, and also declined requests to be interviewed.
Peggy Chase, a member of the New York nursing board, the licensing board for nurses that is part of the Office of the Professions, acknowledged the blind spots in the oversight system. She said she did not remember the issue of background checks being raised at any of the board’s meetings. In a phone interview, she conceded that “people can lie and we will never know,” but said the responsibility for spotting and dealing with problem nurses should not fall exclusively on the Office of the Professions.
In an e-mailed response to ProPublica’s findings, Jeanne Beattie, a spokesperson for the education department, acknowledged that the Office of the Professions had limited ability to discipline nurses.
“We are working with the chairs of the Senate and Assembly Higher Education Committees to improve the disciplinary process to include greater authority and tools for the department,” said Beattie.
Quinn could not be reached by phone and did not respond to a letter sent to her most recent address in Florida. The education department declined to comment on Quinn’s discipline record or the cases of any other individual nurses that ProPublica asked about.
In a handwritten statement three days after Maino died, Quinn said she had left her shift that Saturday afternoon believing Maino was stable and resting. “I was not concerned [with] Thomas’s yelling act because that’s what he had been doing for weeks,” she wrote.
Quinn’s disregard for her patient left a lasting impression on her former colleagues. “Whenever I think about what happened that day I get sick to my stomach,” Veronica Barricella, one of the aides who tended to Maino, said in her February 2009 deposition. “I have also had nightmares.”
There may be no better illustration of the value of checking nurses’ criminal histories than the strange tale of Randall Silsby.
Silsby received a New York nursing license in 1992. Five years later, faced with two divorces and child support payments, Silsby decided to solve his “midlife crisis” by faking his own death. He left Niagara Falls for the Dominican Republic, where he paid a lawyer to draw up a fake death certificate and assumed the name of Julio DiMuerte (muerte means “death” in Spanish). When he decided to resurrect himself and head back to New York, the federal government charged him with making a material false statement to the government, a felony. He was sentenced to six months in prison in 2001. As a condition of his release, Silsby was ordered to receive mental health treatment.
But in 2002, Silsby was able to renew his New York nursing license and return to work simply by not disclosing his conviction on the renewal application. As is typical, the Office of the Professions didn’t independently seek out records on his criminal past. It only does this if nurses admit they have been convicted of crimes or are accused of wrongdoing, officials say.
Silsby’s scheme only came to light more than a decade later, when state officials investigated a claim that he touched the breasts of a sedated 85-year-old patient at Wilson Medical Center in Johnson City, New York. According to a 2014 nursing board document, Silsby was not disciplined for the sexual abuse allegation, and was suspended for one month for forging his death certificate. His license is still active in New York.
Silsby did not respond to multiple emails or phone calls.
New York’s approach to vetting nurses is increasingly out of step with that of other states. In 2005, the National Council of State Boards of Nursing, the trade group representing state nursing boards, issued a report recommending that nursing boards conduct state and federal criminal background checks on all applicants and licensees. “Consumers needing health care are vulnerable. Nursing is a stressful profession. Stress tends to cause bad habits to reappear,” it said, adding that it was “appropriate to establish high behavior standards” for nursing applicants.
In the last decade, a majority of state boards have adopted such measures. In 1998, only five states performed background checks on nurses; by 2014, 37 states did them and more were initiating these procedures.
New York not only relies on nurses to self-report criminal convictions, it also only requires them to do so every three years, when they renew their licenses. Other states mandate that nurses report problems far sooner. Florida, for example, requires nurses to report convictions within 30 days. Georgia gives nurses 10 days to report felony convictions. And nurses in Pennsylvania must report criminal convictions as well as pending criminal charges within 30 days.
As Silsby’s case demonstrates, in the absence of background checks, nurses aren’t always honest. Kathy Thomas, the executive director of the Texas Board of Nursing, said her board instituted background checks and fingerprinting in 2003 after consulting other state boards that discovered many nurses with criminal histories when they stopped relying exclusively on self-reporting.
“We knew self reports were unreliable,” Thomas said. When Texas added background checks, the board discovered “serious criminal history that hadn’t been disclosed.”
According to data provided by the Texas Board of Nursing, the board received just over 4,000 reports filed against Texas nurses in 2004. The state gradually began implementing the fingerprinting system that year. By 2015, the number of reports against nurses had ballooned to almost 14,000, largely as a result of a system that automatically sends reports of criminal convictions and arrests to the nursing board.
David Keepnews, a professor at the Hunter-Bellevue School of Nursing, said background checks and fingerprinting would likely turn up a relatively small number of nurses with serious criminal convictions. But that should not deter New York from pursuing reform, he said.
The “nursing profession as a whole has an interest in ensuring safe nursing care and in maintaining the public’s trust,” he said. “We should see this as an opportunity to make the practice even safer by working to plug the holes in our disciplinary system.”
Even when nurses do report their own misconduct, New York’s system falters. The unit within the Office of the Professions that renews licenses is separate from the unit that pursues investigations, so both processes — renewals and investigations — can proceed simultaneously, on separate tracks.
In August 2012, licensed New York nurse Matthew Schroeder was sentenced to three years in prison for selling a drug without a prescription over eBay. The FDA had initiated an investigation after a Georgia teenager who purchased drugs from him died of an overdose.
“I thought what I was doing was legal. I was trying to branch out and become a self-made business man,” Schroeder said in a phone interview, explaining that the drug he sold was not listed as a controlled substance.
In April 2015, Schroeder applied to renew his state nursing license, although he was not released from prison until that July. Schroeder said he admitted his conviction on the application but the state renewed his license anyway, though it later informed him it had opened an investigation.
“I think it is completely OK for me to be a nurse. I have always taken great care of my patients,” he said, adding that he expected to pay a fine but continue practicing.
Schroeder voluntarily surrendered his California license in March 2014 while he was in prison because he said he could not be present for the hearing in front of the state board. States share disciplinary actions against their nurses, but Schroeder’s New York license has remained active.
New York nurses who report minor crimes say the Office of the Professions can take years to complete investigations, leaving their professional lives in limbo.
Registered nurse Danielle DiSciullo was nervous when she reported a December 2010 DUI on her renewal application in 2013, and was relieved when her license arrived in the mail the following month. But months later, DiSciullo received a letter informing her that the nursing board was investigating her. State records indicate she had a hearing in May 2014, nine months after she voluntarily disclosed the conviction. She received a month-long suspension the following September.
“It was torture at times; I just wanted to know what was going to happen,” said DiSciullo, whose license is now clear.
Edie Brous, an attorney who represents nurses in front of the Office of the Professions, said DiSciullo’s situation is not uncommon. Many of her clients have been disciplined for minor crimes several years after admitting to them. The drawn-out process ill serves nurses without protecting the public, she said.
“If you believe that this is a licensee that needs to be disciplined in order to protect the public’s safety, you don’t sit on it for six months or a year.”
In most states, nurses are overseen either by health departments or independent nursing boards. In New York, however, the Office of the Professions, like the rest of the Department of Education, comes under the Board of Regents, whose primary responsibility is to oversee the state’s vast public education system.
The education department once oversaw all licensed professionals, but in 1975, the health department assumed authority over doctors and physician assistants after the Board of Regents was criticized for failing to provide adequate oversight. “It has been our experience that the response of the Regents to our investigations has been inaction,” Dr. Lawrence Essenson, chairman of the Medical Society of the County of New York’s Board of Censors, wrote in a 1975 letter quoted by the New York Times.
Under the Board of Regents’ umbrella, there’s a complex disciplinary process for nurses accused of misconduct. First, a member of the state nursing board partners with an investigator for the Office of the Professions to determine what happened and, in some cases, recommend discipline. Then a member of the Board of Regents’ Professional Practices Committee reviews and refines their recommendation. Then the full Board of Regents has to approve the final recommendation at its monthly meeting, along with recommendations for disciplinary action from the other 53 professions overseen by the Office of the Professions.
Regent Wade Norwood, the co-chair of the regents’ Professional Practice Committee, defended this process, saying the layers involved created a more “fair and thorough review.”
But Regent Catherine Collins, the only licensed nurse on the Board of Regents, was concerned by the comparatively few disciplinary actions against nurses approved by the board and felt the board does not have a deep enough understanding of individual professions. She said it was crucial for the regents to pay special attention to professions that care for those who are vulnerable, such as nurses.
“People look for loopholes when they want to commit bad behavior. If there is a hole in our system we need to plug it,” Collins said.
Doctors received closer scrutiny after the health department took over their discipline, but legislators say it would be near-impossible to shift authority over nurses.
“There would be a lot of logic to that, but it would be like moving heaven and earth in terms of a legislative task,” said Assemblyman Richard Gottfried, who chairs the Assembly Committee on Health and sits on the Committee on Higher Education.
Legislative oversight of nurses falls to higher education committees, so the committees charged with overseeing health have no ability to initiate legislation concerning the profession.
Kemp Hannon, chair of the Senate Standing Committee on Health, said there had been “incredible” resistance from the higher education committee when his committee had attempted to write measures that included nurses.
Some have pointed to budgetary issues as an explanation for the inefficiency of the Office of the Professions. Democrat Deborah Glick, who chairs the state Assembly’s Higher Education Committee, said the professions office had been “systematically starved” of finances since it doesn’t have the power to raise licensing fees without legislative approval.
But data from the National Council of State Boards of Nursing shows New York’s licensure fees are comparable to other states across the country.Ohio charges lower licensing fees than New York but disciplined almost five times as many nurses in 2014. ProPublica requested a breakdown of the Office of the Professions’ spending to compare with that of other state nursing authorities, but a spokeswoman was unable to provide one beyond aggregate numbers for revenue and expenses.
The Office of the Professions also does not post disciplinary documents online (as its neighbors, New Jersey, Connecticut and Pennsylvania, do), instead providing short summaries for why nurses have been disciplined on its website. The summary of Silsby’s case, for example, simply states that he made a false statement to the government and not that he faked his own death.
While it is routine for states to track the average time it takes to discipline a nurse, New York could not provide this information. Beattie, the education department spokeswoman, said because “there is no average case, it is nearly impossible to define an average time.”
While the Office of the Professions has sole authority over nurses’ licenses, multiple other agencies have a hand in investigating misconduct by nurses.
The state health department enforces care standards at many types of health facilities, from hospitals to nursing homes. If regulators find facilities have not met nursing requirements, they can levy civil fines and report nurses to the Office of the Professions. The state attorney general’s office also tells the Office of the Professions when nurses are convicted of crimes, including cases involving Medicaid fraud.
Still, even when the Office of the Professions is alerted to wrongdoing by other agencies, it re-investigates the allegations from square one.
Between 2013 and 2015, 48 nurses with active licenses were convicted of crimes related to Medicaid fraud investigations, according to data provided by the New York Attorney General’s office. All were referred to the Office of the Professions for disciplinary action, yet 17 have not been disciplined. The office has not disciplined a nurse convicted of Medicaid fraud since November 2014.
The Office of the Professions also rarely acts on cases referred over by the health department, ProPublica found. Documents obtained under New York’s Freedom of Information Law show that out of 54 nurses the health department recommended for discipline in 2014, only 13 were disciplined by the end of 2015.
In March 2012, on her first unsupervised day as a nurse, Linda Ansa administered insulin to a resident of the Mary Manning Walsh Nursing Home on Manhattan’s Upper East Side. The 99-year-old patient was supposed to receive two units of the drug, but Ansa recorded that she’d administered 100. The nurse who took over on the next shift found the patient with labored breathing, sweating, and unresponsive. It took 24 hours to get her blood sugar back to normal, and days later she was still disoriented. Records show the patient nearly died.
The Health Department investigated. Ansa claimed in a hearing that the entry of “100” was simply a clerical error, and that the patient’s symptoms could have reflected her age or other circumstances. In October 2013, a Department of Health administrative judge ruled that Ansa had neglected the patient and therefore violated public health law, though he did not levy a fine. “The Petitioner has been fired from this position and will, in all likelihood, lose her license for her deeds. This is a severe enough penalty for the proven facts of this case,” he wrote.
But even though the health department reported Ansa’s case to the Office of the Professions in January 2014, no action has been taken on her license since then. When reached by telephone, Ansa declined to comment on the case. A health department spokesperson said in an email that “the New York State Department of Education is responsible for overseeing the Office of the Professions, not [the] State Department of Health.”
In addition to receiving reports when other New York agencies sanction nurses, the Office of the Professions is also alerted automatically when other states discipline New York practitioners through NURSYS, a national system run by the National Council of State Boards of Nursing.
But an analysis of disciplinary records in Connecticut, Pennsylvania and New Jersey shows that the Office of the Professions routinely does not sanction New York licensees disciplined by those states. Of 13 nurses disciplined by Connecticut since 2013 who also held active New York licenses, the Office of the Professions has only imposed its own sanction in three cases. In the same time span, it took action against four of 17 nurses disciplined in Pennsylvania who also had active New York licenses and zero out of 26 disciplined in New Jersey.
In March 2012, Heather Graham was summoned before the Pennsylvania nursing board. A physical examination done that month at the board’s request showed she was suffering from “opiate dependence in full early remission” as well as ongoing anxiety and depression due to medical and legal problems, Pennsylvania disciplinary records say.
Court records show Graham was arrested with three other nurses in June 2013 for stealing 31 vials of hydromorphone, an opioid pain medication, from a Watertown, N.Y. hospital where she was employed. She then made false entries in the medication dispensing system to cover up the theft, according to the testimony of a narcotics investigator for the state health department.
In August 2013, New York received a notification through NURSYS that Pennsylvania had revoked Graham’s license. The following year, Graham was convicted and sentenced to three years’ probation in a New York court for falsifying business records and acts prohibited under the public health law.
Yet the Office of the Professions took no action on Graham’s New York license until September 2015. At that time, she was fined $500, but her license was not suspended, according to a summary of her disciplinary action. Graham’s New York license remains active to this day.
Graham could not be reached for comment through her former attorney.
Cindy Powell, a former nurse who worked for the investigative arm of the Office of the Professions for more than two decades until 2011, said she often handled cases of nurses stealing medications who had already been disciplined by another state. Asked whether New York should screen applicants for out-of-state discipline, she said, “That would have made our job so much easier.”
ProPublica’s analysis turned up several other nurses with troubling records in other states and clear licenses in New York.
Celeste Nwanna voluntarily surrendered her New Jersey license in February 2013 while facing criminal charges for improperly drugging an elderly resident of a group home, landing the patient in the emergency room. She had previously been disciplined in New Jersey for making up entries on a patient’s chart. Two years later she applied for a license in Connecticut and to renew her license in New York. Connecticut denied her application because she lied about her criminal history. New York approved the renewal and Nwanna’s license remains active in the state. (Nwanna could not be reached for comment.)
Diane Posthauer voluntarily surrendered her Connecticut nursing license in February 2015 after she was caught taking oxycodone from her hospital. A few months later, Wyoming and North Carolina revoked her licenses in those states. But the same month that she surrendered her Connecticut license, Posthauer’s license was renewed by New York. New York is the only state where her license remains active.
Contacted by phone, Posthauer said she had been prescribed the drug by a doctor and was not addicted. She said that instead of undergoing an expensive drug treatment program, she decided to retire.
Just after 1 a.m. on a February morning in 2014, a nurse’s aide walked in to find Nanic Aidasani in the bed of a 64-year-old dementia patient at a Bronx nursing home. The nurse was moving his body back and forth on top of the patient, according to a police report. The woman had suffered a stroke, which left her unable to speak. Her gown was found unsnapped and her vagina was exposed, the police report said.
Aidasani was charged with attempted rape, sexual abuse and endangering the welfare of an incompetent person, and the story soon made the local news. The day after his arrest, the National Council of State Boards of Nursing sent a news article to the Office of the Professions to alert it to the incident, a spokeswoman for the NCSBN confirmed.
The Office of the Professions can suspend a nurse’s license on an emergency basis, pending a full hearing, in cases in which it decides someone could pose a serious public safety risk. Aidasani’s case appeared tailor-made for such a step. But for more than a year and a half, Aidasani’s license remained active in New York.
It remained active after Aidasani posted $20,000 bail and walked out of Rikers Island days after his arrest. It was active in April 2015, when he was sentenced to prison and agreed to relinquish his license to the court under the terms of a plea deal. Although the Bronx District Attorney’s office notified the Office of the Professions of his sentence, and Aidasani submitted paperwork to voluntarily surrender his license at the time of his sentencing, his license remained active and reflected no punishment even when he was released from jail in August.
Aidasani’s license was finally revoked in September, and he was deported to the Philippines in November.
Loida Rivera, whose mother was sexually assaulted by a nurse, was surprised by how long it had taken for the nurse’s license to be revoked. (Edwin Torres for ProPublica)
“A discipline that takes that long is an injustice,” said Barbara Zittel, the former executive secretary to the New York Board of Nursing, when told of Aidasani’s case. The Office of the Professions declined to comment on Aidasani’s case, other than to say officials had “cooperated fully” with the investigation and his sentencing.
Loida Rivera, the victim’s daughter, was surprised to learn it had taken so long for the Office of the Professions to revoke his license. She had been disappointed with the six-month prison sentence and hoped at least his license would be revoked immediately so others wouldn’t be hurt.
After the attack, Rivera’s mother suffered nightmares and broke out into cold sweats, and it took her months to trust the home health aide that now cares for her. In the first few months, she trembled and clutched onto her diaper when the aide tried to help her change it.
“It’s something she is unable to understand because she is disabled,” said Rivera. “She just knows something happened to her body.”
The family is now suing Manhattanville Health Center, the nursing home that employed Aidasani. The home did not respond to calls about the case.
In the last 10 years, the Office of the Professions has used its emergency suspension powers just twice, according to a review of disciplinary action summaries posted online. Both times, it was in response to a nurse sexually abusing a patient.
By comparison, the Department of Health levied 89 summary suspensions against physicians between 2011 and 2013. Other nursing boards in large states often use this power, saying they view it as a critical tool to protect patients. The Florida board of nursing issued 87 emergency orders against nurses in the 2013–2014 fiscal year, while Michigan filed 134 emergency suspensions in the same period.
These suspensions allow the state “to act quickly to ensure public safety,” said Michael Loepp, a spokesman for Michigan’s Department of Licensing and Regulatory Affairs. Without them, “a licensee who presents a risk to patients could continue to practice for months before a decision to suspend the license could be reached through the administrative process.”.
Florida even created a special unit to handle emergency actions.
New York’s education department said that in part, the low number of emergency suspensions against nurses is due to how the law was written.
Unlike other states, which often can issue summary suspensions before a hearing, New York nurses can only be summarily suspended after a hearing and with the approval of the Regents board. This process said Beattie, the education spokesperson, “takes a fair amount of time, which makes it not as an effective tool” when compared to the authority the health department has over its physicians.
Beattie added that the numbers for emergency suspensions do not reflect cases in which the Office of Professions initiated actions and nurses voluntarily surrendered their licenses before this process was finished. She did not say how many such cases there have been.
Even when New York’s nurses face accusations of horrible abuse, discipline comes slowly. In April 2015, nurse Oluyemisi Adebayo was accused of killing a 2-year-old toddler by submerging her in a bath so hot that her skin peeled off, police said. The national nursing board trade group sent New York nursing overseers a news notification the day after Adebayo’s arrest, a spokeswoman said. But nearly a year later, the state has not taken any action.
The family of the toddler is suing Adebayo and the agency that employed her. Adebayo is currently in jail facing second-degree murder charges. A lawyer for the family, Mark Shaevitz, was surprised to learn that despite the charges, Adebayo’s license remains active.
“For someone to do something like this, even to be alleged, and still be able to retain their nursing license is absolutely ludicrous,” he said.
Support for this project was provided by the Stabile Center for Investigative Journalism at Columbia University. Reporting research was contributed by Nina Agrawal, Malena Carollo, Darwin Chan, Tyler Daniels, Folasade Falebita, Zoe Kirsch, Alexandra Levine, Liza Lucas, Emily Silber, Miriam Sitz, Tal Trachtman and Mohamad Yaghi. The project was supervised by Columbia University adjunct professor Charles Ornstein, a senior reporter at ProPublica.
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