Frustrated lawmakers grill state health agency director over failure to investigate abuse in care facilities

In a nearly three-hour long meeting, lawmakers grilled the head of the Arizona Department of Health Services over a damning report by state auditors detailing how the department has failed for years to investigate high-priority complaints of abuse and neglect in long-term care facilities. 

Lawmakers were visibly frustrated at times as they pressed Don Herrington, who has served as interim director of the agency for nearly a year, for answers on how the department handles complaints, what it is doing to remedy the deficiencies identified by auditors and more. 

The report by the Arizona auditor general found that the Arizona Department of Health Services “artificially extended” the timeline of responding to high-priority complaints, which typically have a response time ranging between 10 days to nearly a year. 

The initial investigation was completed in September 2019 and none of the five recommendations made by auditors were implemented, according to testimony from Deputy Auditor General Melanie Chesney. 

Instead, auditors found that those high-priority cases often would be closed with no investigation after a period of up to a year. 

On average, auditors found that the department regularly failed to initiate an investigation within 10 days on high-profile cases, taking anywhere between 11 to 476 working days. The department told auditors that staffing shortages and the pandemic were issues at play for why they weren’t able to start investigations in a timely manner. 

But Chesney said that wasn’t a satisfactory explanation.

“It did not explain why they simply closed complaints without an investigation,” she said. 

Auditors were also told by a Health Services employee who was tasked with deciding the priority level of complaints that the agency did not believe that Adult Protective Services was a “credible source” for a complaint. 

“The family is simply upset about the family member passing,” Chesney said one employee told auditors. 

In at least one instance, an allegation of sexual abuse was not properly investigated, auditors found. 

In October 2020, a female non-verbal resident was found with a “white sticky substance” in her vaginal area, and the complaint was initially classified as a high priority sexual abuse case. Federal guidelines require immediate investigation, but auditors found department guidelines state that an investigation can begin within 10 days. 

By the time the agency began its own investigation, the facility’s own “internal investigation found that they had cleaned the resident and laundered her sheets before sending her to the hospital and did not inform the hospital she was a potential sexual assault victim,” Chesney said. 

The department eventually closed the report and took no action against the facility. 

Auditors also found the ADHS was not disclosing all information to the public. For instance, one facility in the West Valley had 316 complaints closed — but only seven appear on the Arizona Care Check website, Chesney said. 

“Does a criminal complaint need to be filed against anyone in the department because of this?” Sen. David Livingston, R-Peoria, asked the auditors. 

“This appeared to be a systematic process,” replied Auditor General Lindsey Perry. “We don’t know why, we can’t get to the evidence of who. We know that there were several executive level changes at this time. We don’t have the evidence to support who at this time.”

The department did not implement any of the five recommendations made by the auditor general in its initial and follow-up report. Lawmakers asked how unusual that is, and Perry said it was extremely rare. 

Lawmakers pushed auditors on the intent behind not investigating abuse and neglect with some, like Rep. Amish Shah, D-Phoenix, wondering if it was an attempt to “obfuscate.” 

“As far as getting to the intent, that would be up to a jury to figure out what that intent was,” Perry said. 

Herrington, who was appointed as interim director in August 2021, was peppered with questions for nearly two hours. 

“On the surface, it looks very bad,” Herrington said, adding that ADHS has been looking at it for the past couple weeks. 

Herrington said that “high turnover” and “database issues” are major reasons for the large number of high-priority cases that have not been investigated. He said the department is planning to hire a “complaint team” as well as other additional staff. 

The department last year was given $1.6 million to pay for surveyors to go into long-term care facilities, but Herrington admitted to lawmakers they have used only $31,000 to hire one part-time employee, citing issues with hiring. 

“We are looking at hiring incentives, as well,” Herrington said. The Department originally had intended to ask the legislature for 44 new employees in the budget last year, but instead got the $1.6 million for 16 new hires. 

“This report is pretty horrific,” Rep. Steve Kaiser, R-Phoenix, said. “Why shouldn’t we privatize this and take away this function?”

Herrington told lawmakers that the department is planning to reach at least one of the internal goals, updating its policies and procedures, by July 1. 

When asked about why ADHS was not investigating cases of abuse and neglect, Herrington said he did not want to “hypothesize.” 

“I don’t know if it was because people felt overworked or worried,” Herrington said. “We cannot establish that there was some purposeful or neglectful will to let this come about … We don’t want to rush it, we want to be right.”

Herrington said that, as someone who had a relative in long-term care, it is something he feels strongly about, adding that the agency is also looking to add a “quality control” person to oversee the process. 

“You already have too much bureaucracy,” Kaiser shot back, saying that the Department should implement the federally recommended practices that the auditor general suggested. “You’re creating a mess.” 

By the end of the meeting the committee had come up with seven major recommendations for ADHS: 

1. The department will provide quarterly updates on its progress on implementing the auditor general’s recommendations. 
2. The department will create clear criteria and a transparent process for how the priority complaint process works so it is known who makes what decisions. 
3. The legislature will make the Centers for Medicare and Medicaid Services aware of the auditor general’s report. 
4. The department will look into the feasibility of contracting with independent entities to help with complaint investigations and then report back to the legislature. 
5. The department will allow the auditor general access to data related to the complaint process. 
6. The auditor general will report on that data to the legislature. 
7. Lawmakers will encourage the auditor general to ask the attorney general to investigate the findings of their report. 

“I know the report has been negative,” Herrington said to the committee. “But I don’t want the committee to come back with the belief that this is indicative of the entire long-term care industry…as a whole, the people of Arizona should be very happy and proud of the long-term care providers we have in Arizona”