Arizona families researching assisted-living homes for elderly loved ones cannot learn details about complaints filed against various facilities because of the state’s interpretation of the law.
The state Department of Health Services says specific complaints about assisted-living homes should not be available to the public — even after the documents are stripped of information identifying the patients and the person who complained.
That means there’s no way for families seeking placement for vulnerable adults to track patterns in complaints, assess their severity or make an informed decision about a home’s quality.
Margaret Higgins, long-term-care ombudsman coordinator at the Pima Council on Aging, is among those who think knowing what’s in complaints would be helpful to families making difficult decisions about the health and safety of elderly relatives. More than 1 million Arizonans are over age 65 — 171,000 of them in Pima County, the most recent census figures show.
“It’s rough. Until you’re put in that position, you don’t realize how rough it is” to make an informed choice about a loved one’s placement, she said. “I would want as much information as possible if I were making a decision for a family member.”
Part of Higgins’ job is to help resolve complaints from families, but even she sometimes finds it difficult to get a full picture of a facility’s quality.
“Unless people call us and tell us stuff,” she said, “sometimes we have no way of knowing.”
WHAT’S AVAILABLE NOW
Health Services puts some records online at azcarecheck.com, but the database shows only violations that were substantiated in the past three years and does not include specific allegations against a facility.
The only way to tell how many complaints there have been about any one place is to review a facility’s paper file in a state office in Tucson or Phoenix.
But it’s hard to discern patterns there, too.
The evidence of an unsubstantiated complaint is found in three documents: a letter to the complainant, with his or her name blacked out, that says the department received the complaint; a database printout putting each allegation in a broad category such as “quality of care/treatment” or “pharmaceutical services”; and an investigator’s summary showing the number of people interviewed and documents reviewed.
If a complaint is substantiated, members of the public can read a summary of the investigation and the care home’s corrective plan. But they still cannot read the full text of the complaint, so it can be difficult to tell what happened to prompt it.
LEGAL ARGUMENTS
As justification for keeping complaints secret, Health Services cites a statute that created an exception to normal public access for “sources of information that cause the department to believe that an inspection of an institution is needed to determine the extent of compliance” with state rules.
But instead of considering the person who complains to be the “source of information,” the Department of Health Services considers the source to be the entire document.
The Star’s appeals of that legal interpretation have been unsuccessful. Jeff Bloomberg, manager of the department’s Division of Planning and Operations, Administrative Counsel and Rules, directed the Star to give up or sue. He said the department had no need to explain its legal position and have a conversation about public interest.
The Star appealed the state’s decision through Arizona’s assistant ombudsman for public access, Kathryn Marquoit, but did not get it reversed. An assistant attorney general told Marquoit that several parts of the complaint could lead a reader to find out who complained and pointed to the statute’s use of the words “source name” as well as “source of information” as evidence the Legislature meant the statute to be interpreted broadly.
“I think it is arguable,” she said.
No Penalties
Marquoit points out that unlike other statutes that carve out the few exemptions from Arizona’s Public Records Law, this one has no penalties for disclosing protected information. That could suggest the Legislature intended documents to be redacted — with confidential information blacked out — rather than completely shielded from release.
Philip Higdon, an attorney at Phoenix law firm Perkins Coie who answered questions Friday on behalf of the First Amendment Coalition, agreed that Health Services’ position was not the only reasonable stance.
“To me, a source is not the complaint,” he said. “It’s the author of the complaint.”
While Higdon acknowledged a state interest in protecting the identities of patients and complainants, he said: “There’s no policy reason that I can see for not disclosing the complaint. You do that through simple redaction.”
“It doesn’t say the department shall be transparent in the way the department feels comfortable,” he added.
Neither Health Services’ legislative liaison nor the chairwomen of the Legislature’s health committees could resolve the question about the Legislature’s intentions Friday.
Sen. Nancy Barto, a Republican from Phoenix who chairs the Senate’s Healthcare and Medical Liability Reform Committee, said she would ask more questions, but for now deferred to Health Services’ interpretation.
“The disciplinary actions are really the public’s avenue,” she said. “The public does have the opportunity to see the disciplinary actions that are substantiated at these facilities. I’m not sure there’s an issue for the public at this time.”
The public can see a summary of the investigation but not the text of the complaint.
Barto points out that not all complaints are motivated by health or safety concerns. A competitor could launch a complaint, for example, or a disgruntled employee.
The staff in Rep. Heather Carter’s office gave similar reasoning for the status quo, but offered to research the history of the law. Carter, a Republican from Cave Creek who is the chairwoman of the House Health and Human Services Committee, had no immediate comment.
WHEN IT MATTERS
A review of the paper file for Emeritus at Catalina Foothills, 3701 N. Swan Road, highlights why someone might want to know the substance of past complaints.
The file contains documents related to 11 complaints dating to April 2012. Seven were found to be unsubstantiated.
But five complaints were clustered between late March and early May of this year, a frequency that could cause concern.
A reader might wonder, were the complaints related to the same employee or a particular area of training? Were they early warning signs of medicine-related allegations later found substantiated? There’s no way to know.
One of the investigations in that cluster consisted of an interview of one employee, one other person and a review of a patient’s medical records, the investigator’s summary shows. The complaint, related to “pharmaceutical services” and patient rights, was unsubstantiated.
That’s all the information available.
