How one industry's political investments paid off

When Governor Chet Culver took final action on the last two dozen bills from the 2009 legislative session, my biggest disappointment was his decision to sign Senate File 433, a bill that "eliminates a broad range of fines against Iowa nursing homes that fail to meet minimum health and safety standards."

Governors rarely veto bills that pass out of the state legislature unanimously, as this one did. However, when Culver didn't sign Senate File 433 right away, I hoped he was seriously considering the advice of the Iowa Department of Elder Affairs and the Iowa Department of Inspections and Appeals. Both of those state agencies opposed the bill.

Instead of listening to the public officials who have the most in-depth knowledge of nursing home regulations and violations, Culver sided with a corporate interest group:

Former state legislator John Tapscott, who now advocates for Iowa seniors, said the new law is an example of what the nursing home industry can buy with its campaign contributions.

"It only proves that our legislative leaders and governor are willing to sell out the most vulnerable of our citizens - the sick and elderly residing in nursing homes - for a few thousand campaign dollars," he said.

Click "there's more" to read about the substance of this bill and the winning strategy of the Iowa Health Care Association, which represents nursing homes. I couldn't have written this post without an outstanding series of reports by Clark Kauffman of the Des Moines Register last November (see also here and here).

Kauffman summarized the bill Culver signed in the Des Moines Register on May 28:

The new law eliminates fines for dozens of violations in cases where the nursing homes identify and correct those problems on their own, without a complaint being filed or a state inspector uncovering the matter.

One of the self-identified violations that will now be exempt from fines is insufficient staffing, which is considered to be the biggest contributor to resident neglect in nursing homes.

Other exempt violations include:

• Failure to meet residents' nutritional needs.

• Failure to provide adequate dental care.

• Failure to have competent, licensed administrators or caregivers.

• Failure to have a qualified nurse on duty.

In other words, Iowa nursing homes can now rest easy if they have insufficient staff on duty. As long as they report the problem before a state inspector gets wind of it, they won't have to pay a cent, even if cutting corners on staff deprived somebody's grandma of adequate food or dental care. No wonder the Iowa Department of Elder Affairs and the Iowa Department of Inspections and Appeals lobbied against the bill.

How on earth did this idea win unanimous support from both parties in the Iowa House and Senate?

Earlier this year I discussed four ways to buy influence at the statehouse:

1. Give campaign contributions through donors and/or political action committees (PACs).

2. Provide legislators with free food, drinks or entertainment.

3. Hire a good lobbyist.

4. Pay for direct mail, phone banks or other ways to mobilize large numbers of Iowans.

The Iowa Health Care Association covered all those bases and more.

1. Campaign contributions flowed generously to Iowa politicians from both parties.

During just one week in 2007, the industry group held 12 fundraisers to solicit individual donations to state legislators from both parties. In addition to these gifts from individuals, the Iowa Health Care Association Political Action Committee made substantial contributions. Kauffman listed some of the PAC's large gifts during 2008:

Iowa Democratic Party: $12,500

Iowa Senate Majority Leader Mike Gronstal, D-Council Bluffs: $12,500

Gov. Chet Culver: $10,000

Republican Party of Iowa: $7,500

Senate Minority Leader Ron Wieck, R-Sioux City: $5,000

House Speaker Pat Murphy, D-Dubuque: $4,500

House Majority Leader Kevin McCarthy, D-Des Moines: $2,500

Former House Minority Leader Christopher Rants, R-Sioux City: $2,000

Rep. Jo Oldson, D-Des Moines: $2,000

Senate President Jack Kibbie, D-Emmetsburg: $2,000

I should have mentioned in this post that most corporate groups do direct individual and PAC contributions to elected officials from both parties. That's more expensive than giving only to the party in power, but it reduces the risk that the bill you want will become a focal point in partisan warfare. (That's one reason why the Democratic-controlled state legislature failed to pass any of organized labor's legislative priorities this year, despite the huge financial support big labor unions have given Iowa Democrats.)

By giving campaign cash to the Republican Party of Iowa and Republican leaders in the Iowa House and Senate, the Iowa Health Care Association's PAC and individual supporters built up goodwill.

2. The Iowa Health Care Association paid for other perks for state legislators.

Kauffman reported that the industry group covered air fare and hotel expenses for Iowa lawmakers on several occasions. State Representative Dave Heaton (a Republican) and Senate President Jack Kibbie (a Democrat) received expenses-paid trips to Washington in 2007. Kibbie and his wife went back to Washington on the Iowa Healthcare Association's dime in 2008.

Heaton and Kibbie just happened to become outspoken advocates of reducing fines for nursing homes:

Senate President John "Jack" Kibbie, D-Emmetsburg, says that the inspections department seems to have "a 'gotcha' attitude" and that he'd like to see it take a "softer approach" to regulation.

Rep. Dave Heaton, R-Mount Pleasant, says the department needs to help nursing homes improve their care, not just punish them for their shortcomings. "That's what it's really all about," he said. "Lifting them up and improving the quality, instead of beating them down."

3. The nursing home industry had lobbyists on the ground supporting Senate File 433.

The Iowa Health Care Association employs a "director of regulatory affairs" to represent the group at the state capitol. She "monitors proposed rules and advances the Association's position on proposed legislation by attending hearings and submitting comments."

A separate nursing home trade association called the Iowa Council of Health Care Centers had several lobbyists supporting Senate File 433 during this year's session.

4. The Iowa Health Care Association mobilized public comments for relaxing fines on nursing homes.

The Iowa Health Care Association circulated at least one form letter for nursing home residents to sign and administrators to send to state legislators, Kauffman reported:

In addition to holding campaign fundraisers, the association sometimes uses the elderly residents of nursing homes as part of its lobbying effort. In March [2008], the organization provided Iowa's care facility administrators with a fill-in-the-blank letter that could be customized, given to residents to sign and then forwarded to lawmakers.

It read, in part:

"[NAME OF FACILITY] is dedicated to providing the best care. ... Increasing fines by the Iowa Department of Inspections and Appeals (DIA) are cutting into the funds that nursing homes have to put toward providing care. ... [NAME OF FACILITY] will either be forced to close or increase my rates. I do not want to be forced to move into another nursing home. ..."

I wonder if any elderly people who signed that form letter were asked whether $112,650 was too much to fine a facility where staff didn't change a wound dressing or have a doctor look at a patient for 25 days, resulting in the amputation of a gangrenous leg.

Anyway, the Iowa Health Care Association supplemented this letter-writing campaign with a series of 28 legislative forums last fall to call attention to industry complaints about state regulators:

In one of the written presentations for legislators, the association says the inspections department is "flogging" nursing homes and blocking seniors' access to health care, in part by imposing huge fines against the owners and prohibiting new admissions until care problems are addressed. [...]

Dean Lerner, the head of the state inspections department, rejects the claim that his agency is overzealous in enforcing the law. He said the number of sanctions imposed against Iowa homes is less than the regional and national averages. For the past 22 years, state fines have been capped at $10,000 per violation.

"We have very, very fine nursing homes in this state," Lerner said. "And the work we do is very focused, targeting the poor performers."

By the way, Lerner was concerned enough about the industry's public lobbying to schedule 17 forums around the state where the Iowa Department of Inspections and Appeals could tell its side of the story on nursing home regulations.

I want to call attention to one more highly effective tactic that I didn't think to mention in my post about buying influence at the statehouse:

5. The nursing home industry created the appearance of supporting a compromise in the public's interest, rather than a blatant giveaway to one interest group.

Although Senate File 433 was a response to nursing home industry complaints about large fines, it wasn't framed that way in legislative or public discussions. Advocates described the bill as a way to improve care for nursing home residents:

Culver spokesman Phil Roeder said the governor signed the bill into law because he believes "it will promote better care by encouraging nursing homes to develop pro-active quality assurance programs and allowing facilities to identify and correct problems right away."

I have to ask what's been stopping the nursing homes from identifying and correcting these problems up to now. Roeder's statement, like the comments from State Representative Heaton and Senator Kibbie I quoted above, relies on convoluted reasoning. The simplest way to avoid fines is to comply with regulations. Eliminating fines for non-compliance seems like a strange way to encourage higher quality care.

The other clever trick used by backers of Senate File 433 was to include much higher fines for certain violations that are never invoked. Kauffman reported last week,

Fines for intentionally killing or injuring residents will be doubled under the new law, although state regulators say they don't anticipate any Iowa homes being cited for such an offense.

I recently asked a state legislator why he supported the nursing homes bill. He said that he didn't serve on the relevant subcommittee, but as presented to him the bill seemed like a reasonable trade-off, because they were doubling the fines for the more serious violations while waiving fines for minor violations. When I mentioned that no one ever gets charged with the more serious violations, he looked surprised.

It's a great talking point to say, "We're doubling fines for the most serious violations," but it's hard to imagine a scenario where a nursing home would be cited for intentionally killing a patient. Consequently, it's meaningless to double those fines. In contrast, the violations for which Senate File 433 eliminates fines are the most common causes of patient neglect. Waiving those fines will save negligent care facilities a lot of money.

In the end, Senate File 433 passed the Iowa House and Senate without a single dissenting vote. (In the old days, Ed Fallon or Minnette Doderer would have made this vote 99-1 or 98-2.) Few media reports highlighted its passage, because it didn't arouse controversy, and journalists are drawn to political conflict.

As I mentioned near the top of this piece, it's rare for a governor to veto a bill that passed unanimously. Also, Culver's campaign committee has received large donations from the Iowa Health Care Association. Still, my hunch is that the governor was thinking about rejecting this bill. You can tell when he's proud to sign a document, because he convenes a special ceremony or at least issues a stand-alone press release. The nursing home bill was buried in the middle of a press release on lots of legislation.

If there had been a huge public outcry about this bill, or Culver had internal polling showing widespread opposition to it, he might have acted differently. As things stood, he had little to gain from a veto. The media weren't bashing him over this bill. Republicans aren't going to use this issue against him in the 2010 campaign, because they all voted for the measure. Culver doesn't need to add to the friction between his office and Democratic legislative leaders either.

The Iowa Health Care Association's effective political investments gave Culver every reason to sign this bill.

The only reason not to sign was the substantive argument made by advocates for the elderly, like Charlotte Walker of Iowa City: "This bill makes it too easy for nursing home owners to avoid following Iowa law."

I'll have Senate File 433 in mind next time I write a check to groups supporting campaign finance reform, such as Iowa Citizens for Community Improvement and Public Campaign.

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