Law Proposed in Response to Care Facility (Iowa, USA)

Saturday, February 23, 2008
Law proposed in response to care facility
Regulators make return visits to Legacy Gardens
By Kathryn Fiegen Iowa City Press-Citizen

State regulators have returned to an Iowa City care facility three times since an April 2007 investigation that detailed cases of elder abuse and neglect, but the records from the visits will remain secret because of a state law enacted three years ago.
Dave Werning, spokes-man for the Iowa Department of Inspections and Appeals, said the agency went to Legacy Gardens, 15 Silvercrest Place, in June 2007 to investigate a new complaint. They returned in August to again address the June complaint and a third time in November to investigate a new complaint and revisit the issues of prior visits.
But, Werning said, the company that owns Legacy Gardens, Dial Senior Management in Omaha, Neb., has appealed every action by the agency and has successfully petitioned to have a hearing before an administrative law judge in August -- more than a year after the first complaint was generated.
Legislation prevents state regulators from releasing the report findings until all appeals have been finalized, he said.

Dial Senior Management President Ted Lowndes said in a letter that's as it should be.
"There have been statements in the print media of the public's right to know about allegations of regulatory violations against a health care program. But what is missing in the article is the recognition of due process that is afforded under the United States Constitution and the Iowa Constitution," he wrote in a letter dated Friday. "In many instances, there is a balance between the 'public's right to know' and not ruining a person's or entity's professional reputation related to inaccurate, unsubstantiated and baseless accusations."
Werning said the department's "hands were tied."
"This is information people need to know," he said.

An April investigation found 33 code violations at Legacy Gardens, including a staff member with a criminal history slapping a tenant on the hand multiple times and holding his/her arms behind her back; a staff member twisting a resident's arm while going back to his/her apartment while the resident yelled "help, help"; and, another tenant wore the same adult incontinence product for three to five days in January.
The facility was fined and ordered not to admit new residents for 60 days after the investigation was finalized in July. Werning said he couldn't disclose if sanctions remain on the facility, but said, "If you'd walk into the lobby and see the certificate, it'd still say 'conditional' on it."
Three weeks ago, the Department of Inspections and Appeals introduced new legislation that would greatly reduce the waiting time before records are made public, Werning said. The proposed legislation came as a direct result of Legacy's actions, he said.
"It reduces it down to probably a maximum two months before it's disclosable," he said, adding that the new policy would bring assisted living facilities more in line with nursing homes. Nursing home investigation records are made public before the appeals process is exhausted, but the reports are marked to note that the agency's findings are under appeal.
Rep. Dave Jacoby, D-Coralville, said Legacy was abusing legislation that was enacted three years ago to keep assisted living records secret until "due process was followed."
Jacoby helped sponsor the amendment that said the records would be kept confidential during appeals.
"There was never any intent to block access to the records," he said. "The intent was to make sure we have accurate records for public access."
Jacoby said there was a good chance the issue could come up in the Legislature this year because there is already discussion about the way the DIA levies fines on nursing homes and assisted living facilities.
"We need to take a look at everything across the board," he said.
In the meantime, it could still be years before the Legacy records are released, Werning said. Even if the department wins its case before a judge this summer, Dial could appeal that decision in district court and keep appealing all the way up to Iowa's Supreme Court.
"It could be years down the road," he said.
Although agency inspections aren't available, police records show that problems exist at Legacy Gardens.
According to police, on Jan. 31, Legacy staff member Tina Marshall was working with an 85-year-old female patient when both became agitated, the report said. The patient spit at Marshall, after which she said, "Don't spit at me," and backhanded the woman.
Online court records show Marshall pleaded not guilty to an assault charge that resulted from the incident.
In an phone interview Thursday, Lowndes said Marshall, who was given a criminal background check and properly trained when she was hired, was fired. Lowndes said the incident was "isolated."
He said the facility immediately called police, the Department of Human Services and the DIA, as well as notified family members of the situation.
"We took it upon ourselves to self-report," Lowdnes said.
Lowdnes said he didn't want to discuss the facility's appeals process and emphasized that the company maintains clear communication with its families no matter what legislation says.
Kelly Lamb, a family caregiver and counseling specialist at Elder Services in Iowa City, said