For years, Iowa legislators have been eager to do whatever the nursing home industry asks of them. The Iowa Health Care Association’s lobbying efforts on behalf of nursing home owners have yielded impressive results. In 2009, the Iowa House and Senate unanimously passed a bill eliminating fines for dozens of violations at elder care facilities. Lawmakers from both parties have lobbied for the industry’s wish list in Washington. They have whined about inspectors “gotcha mentality” and in some cases interfered with the work of nursing home inspectors.
The Iowa Health Care Association’s influence will increase in the next administration. Governor-elect Terry Branstad told Iowa Public Television in October that he will appoint new leadership for the Department of Inspections and Appeals, with a view to more “collaborative and cooperative” work with nursing homes. That’s not good news for residents whose lives literally depend on how standards of care are enforced.
Outgoing Governor Chet Culver hasn’t always stood up to the nursing home industry (he signed that bad 2009 bill), but at least he appointed Dean Lerner as director of the Iowa Department of Inspections and Appeals. Lerner has tried to enforce state regulations relating to nursing home operations, and doing so hasn’t won him friends in high places. A 2009 Government Accountability Office report described various forms of external pressure on nursing home inspectors. Details regarding “State A” in that report refer to Iowa. On November 8 the Des Moines Register’s editorial board summarized some of the GAO’s findings:
Here’s what the GAO said was going on in “State A”:
– State lawmakers and industry officials showed up at nursing homes during inspections. Lawmakers came “to question surveyors about their work and whether state agency executives were coercing them to find deficiencies,” according to the GAO.
– During one inspection, “a home’s lawyer was on site reviewing nursing home documentation before surveyors were given access to these documents.”
– Iowa inspectors were under so much “external pressure” that they terminated an inspection of one home and asked federal regulators to complete it. The feds found numerous problems in the home, and also acknowledged the type of interference Iowa officials were reporting.
The above examples offer insight into what goes on behind the scenes in Iowa. And they jive with what Dean Lerner, director of the Iowa Department of Inspections and Appeals, has shared with this newspaper in the past. He has talked about a lawmaker urging him to recertify a home that had been decertified by the federal government for serious care violations.
The complete GAO report can be downloaded here (pdf file). Pages 40 through 42 recount some of the disturbing facts related to “State A.”
Incoming Iowa House Speaker Kraig Paulsen and Lerner traded accusations last week. Republican Paulsen described Lerner as “a detriment to the state of Iowa.” Lerner responded,
“How can enforcing laws to protect vulnerable seniors, special-needs children and disabled Iowans have been a detriment to our state?” he said in a written statement. “During my nearly 30 years of public service, I’ve never even met Speaker-elect Paulsen. Perhaps he should have spoken with us about the important work of the department before blindly endorsing industry-inspired accusations which have no basis in fact. Iowans expect better of their leaders.”
Lerner’s right, but Iowa legislators from both parties have blindly endorsed industry-inspired accusations. Paulsen’s stance isn’t new or unique.
The big problem is Branstad. In his Iowa Public Television interview in October, Branstad decried the “gotcha attitude” of nursing home inspectors. That prompted the Des Moines Register’s Clark Kauffman to take a closer look at Branstad’s record on regulating nursing homes. It’s not encouraging:
– State Auditor Richard Johnson, a Republican, examined the inspections department in 1995 and found that the agency was not complying with the state’s own legal requirements for inspecting each Iowa care facility at least once every 15 months. Only one of Iowa’s 459 residential care facilities had been inspected the previous year.
– Iowa Long-Term Care Ombudsman Carl McPherson issued a report in 1997 that said the inspections department was “negligent in the protection of our most vulnerable and dependent citizens.”
– State Ombudsman William Angrick examined Iowa’s regulation of nursing homes in 1997 and concluded the inspections department had failed for eight years to adequately enforce state and federal laws governing nursing homes and was itself violating federal law by failing to adequately penalize care facilities for their neglect of residents, even in cases where deaths had occurred.
The ombudsman’s report was particularly critical of the state’s decision to impose a $500 fine in response to two deaths and several instances of sexual abuse and resident neglect at one Iowa care center.
Branstad, who served as governor from 1983 to 1999, said last week that he doesn’t recall any such criticism of the state’s enforcement efforts when he was governor.
“That’s a long time ago,” Branstad said. “I’m not sure what they said. I have confidence that the departments and agencies enforced the law in a fair and even-handed way.”
How can you even pretend to enforce the law when one out of 459 elder care facilities was inspected in a whole year? Those lapses Kauffman mentioned occurred during Branstad’s fourth term as governor. It’s not as if he was new on the job and hadn’t figured out how state government was supposed to work.
The so-called “excessive” fines decried by Iowa lawmakers include a $112,650 fine against a Grinnell nursing home that had a 45-page list of deficiencies. One 89-year-old woman entered that home healthy except for a fractured ankle; she developed gangrene after no one checked her wound or changed her stocking for 25 days. That nursing home owner appealed the fine and eventually settled for $75,397.
Branstad says his chief of inspections will work collaboratively to gain compliance from nursing homes. But if repeat violators know they are less likely to be inspected or fined, why should they clean up their act? A Register editorial published on November 15 argued, “Dean Lerner is not the problem”:
This editorial board contemplated launching a “Save Dean Lerner” campaign. Because a guy willing to fight for the interests of Iowans is exactly who should head a state agency charged with oversight.
But a campaign probably can’t help him. Besides, this public flogging isn’t really about Lerner. He isn’t the problem. The problem is the elected officials who reject adequate government regulation of places that hold the lives of Iowans in their hands. When they bash Lerner, what they really do is send messages about their vision.
The messages are these:
– To nursing homes: We’re on your side. When maggots infest the wound of a resident or someone sits in a urine-soaked gown for hours, we want to work with you to make things better, not penalize you for screwing up.
– To assisted living centers: We don’t care that you house some of the most vulnerable people in the state. We’ll continue to treat you like “apartment complexes” and look the other way when a senior is living there whose needs you can’t meet.
– To the next director of inspections and appeals: Your job is to be nice to powerful industries, not regulate them. Shut up and back off.
These messages should scare the heck out of any Iowan who plans on growing older. They should scare the heck out of anyone with a loved one in a nursing home or an assisted living center.
The Register’s editorial writers have endorsed a federal bill which “says that anyone, including an elected official, who ‘attempts to inappropriately influence’ an inspection at a Medicare- or Medicaid-certified home will be subject to a civil fine of up to $10,000. The bill also provides whistle-blower protection for the inspectors who oversee care facilities.” I’ll bet $10,000 that the bill is DOA in Congress, especially now that Republicans control the House.
Seniors in assisted living often lack the capacity to identify and report substandard care. I would advise Iowans to keep a closer eye on how their friends and relatives in nursing homes are treated. The Branstad administration won’t be watching as closely for violations, but the Register is likely to stay on this case in the coming years.
UPDATE: It’s sad when lawmakers don’t get the facts before leaning on regulators:
Earlier this year, ManorCare of West Des Moines was the focus of a state investigation when it hosted a legislative fundraiser.
Two Des Moines-area Republicans, Rep. Peter Cownie and Rep. Chris Hagenow, attended, and each left ManorCare with $600 in campaign donations. At the time, the federal government had decertified ManorCare, cutting off its Medicaid funding due to repeated violations.
After the meeting, Hagenow posted a message to his Facebook page in which he talked about the “terrific meeting” he had with industry officials about state regulation.
That same day, Cownie was on the phone to Lerner, asking for an update on the process by which ManorCare was going to be recertified.
At around that same time, Sen. Pat Ward, R-West Des Moines, called Lerner at the inspections department. She informed him that ManorCare was providing a “very high” level of care to its residents, and said, “I am calling to urge you to recertify it as quickly as possible.”
Campaign finance records say Ward was given $500 by industry lobbyists on the same day Cownie and Hagenow accepted their checks. Ward denies receiving any money from the lobbyists.
She told the Register that when she called Lerner she hadn’t read any of ManorCare’s inspection reports and was unfamiliar with allegations of widespread neglect that had led to $20,000 in fines and federal sanctions.
Still, she said, the state should be helping ManorCare figure out how to comply with the regulations, not just penalizing the company for its failures.
“We don’t want them just coming down on them and slamming them with fines,” she said. “We want them to communicate with the industry and tell the ManorCares of the world what they are doing wrong and what they need to do to improve things.”
ManorCare is a for-profit chain worth an estimated $5 billion. It claims to have spent $20 million last year on employee training.