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Arizona lawmakers: Was lax nursing-home oversight criminal neglect?

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PHOENIX — State lawmakers lashed out Thursday at the state health director after a report said his department has failed to ensure that patients in nursing homes are kept safe.

They were particularly angry that none of the recommendations made by state Auditor General Lindsey Perry 30 months ago to fix the problems has been implemented.

In fact, it came to the point where lawmakers asked auditors whether the failure to investigate reports of abuse and neglect rose to the point of being criminal.

“That’s a tough question,’’ Perry responded to the special House-Senate committee reviewing the report.

On one hand, she said she found no evidence of actual criminal wrongdoing.

But Perry said it appears the health department had purposely put a system in place so that many high priority complaints — things like pressure sores, residents being left soiled for long periods of time, and abuse and neglect — were not investigated within the 10 days required, or not investigated at all.

That was enough to get Rep. Kelli Butler, D-Paradise Valley, to have the committee direct Perry to consult with the Attorney General’s Office to determine whether the failure to comply with the timelines to investigate high-priority complaints rose to the level of criminal neglect.

Perry said the question of whether that was done intentionally “would be up to a jury.’’

Thursday’s hearing gave Don Herrington, the acting director of the Arizona Department of Health Services, the first chance to explain to the legislative panel what has gone wrong — and what his department is doing to fix the problems. But his answers to Perry’s report left several lawmakers less than satisfied.

“Tell me, since you guys are failing to do this correctly, why shouldn’t we privatize this, take this money away from you and privatize that function?’’ asked Rep. Steve Kaiser, R-Phoenix.

“I can understand your point,’’ Herrington responded. But he said the department is “quite on our way to accomplishing’’ the recommendations that Perry’s office first made in 2019 to fix the system.

Herrington also said it was the departments “internal goal’’ to fix the problems by the end of this month. And he said that every “high priority’’ complaint that has come in since Jan. 1, 2021 has been investigated on time.

That response did not satisfy Rep. Joanne Osborne, R-Goodyear, however.

She pointed out that the follow-up report — issued last month — said the department inappropriately changed virtually all of its open high-priority complaints to lower priorities. That artificially extended the time for the health department to respond to those complaints from the required 10 days to a full year.

Osborne told Herrington that “it’s going to have to be proven to us’’ that ADHS actually did the investigations as required within the 10 days and was not simply finding paper solutions by reclassifying them to lower priority.

Perry told lawmakers that what Herrington told them is incorrect. She said her auditors found that a majority of high-priority complaints made even after Jan. 1, 2021 were, in fact, reclassified.

It is that issue of failing to promptly investigate that most bothered lawmakers.

High-priority complaints, those that are required to be investigated within 10 days, are one step below those classified as “immediate jeopardy,’’ meaning there is an immediate and serious threat to health and safety. The latter have to be checked out within two days.

High priority, by contrast, is defined to include actual harm that impairs a resident’s mental, physical or psycho-social status. It also includes hazards to health and safety that may exist and are likely to cause a significant problem in care and treatment.

Perry said the follow-up audit to the 2019 report found that 73% of the high-priority complaints the health department received still were not investigated within the 10-day window as required.

“There’s lots of cases that are not being looked at,’’ said Sen. David Livingston, R-Peoria. And he said this requires immediate attention.

“The residents in these facilities, some have parents who live here, some have children who live here, and some don’t,’’ Livingston told Herrington.

“Your department’s responsible to make sure they’re safe,’’ he continued. “And if you’re not out there doing even an initial review, that means you do not know.’’

He was not alone in saying the health department is failing Arizonans.

“When they put these family members and these loved ones in the care of the state, they do not deserve to get the treatment that we’re currently giving them,’’ said Rep. Cesar Chavez, D-Phoenix.

Butler said the issues raised in Perry’s report are about more than what happens going forward.

She asked Herrington what his department is doing to go back, look at all complaints that were not investigated, and make sure that the nursing homes where they originated are, in fact, safe. That means making sure the public reports on each of these facilities, which family members use to determine where to put loved ones, are up to date and have the full information.

Herrington, whose department oversees about 150 nursing homes, said the lion’s share of the complaints at issue involve just four facilities, which he did not name. And he said his staff is reviewing those cases.

“So when can we expect this fixing for the public on this website?’’ Butler asked. “What’s the time frame, what’s the goal of trying to have that done by?’’

“I don’t have a specific date on that,’’ he responded.

That answer did not satisfy Osborne. “We need a date,’’ she shot back. But Herrington said it isn’t that simple.

The panel did agree that the health department should look into the issue of contracting out for nurses and others who can investigate complaints in a timely fashion. That would address staff shortages.

But Rep. Amish Shah, D-Phoenix, said it might not address the underlying problem: properly classifying the complaints as they come in.

“They still have to take that information and act on it in a way that only AzDHS can,’’ he said.

“I want to make sure that even if we offer that solution (of contract investigators) it’s not a complete solution,’’ Shah said. “There still has to be proper processing of that.’’

Chavez said there’s another issue. He said he wants to be sure that whomever Gov. Doug Ducey taps to permanently fill the health director position understands that fixing the problem is part of their job.

But there may not be a permanent director.

Herrington has been interim chief since last August when Cara Christ quit to take a job in the private sector. Gubernatorial press aide C.J. Karamargin said the position has been posted, though he could not immediately say if anyone has been interviewed for it in the past 10 months.

But Ducey’s term is up at the end of the year.

The health director serves at the pleasure of the governor, meaning whoever replaces Ducey could bring in their own choice. That could make recruiting difficult, if not impossible.

Karamargin said the lack of an official director, who would require Senate confirmation, is irrelevant, saying Herrington “has the full authority the position confers’’ even without the title.

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