Earlier this year, state investigators sent a clear message to Austin’s institution for people with disabilities: Stop violating federal rules by June 17 or risk lose millions in federal money.
June 17 came. The center partially complied. And it didn’t lose its money.
It was a typical response to a routine threat. Since 2009, investigators have issued that same warning to Texas’ 13 state supported living centers more than 50 times, giving them 90 days to fix problems. They have not pulled the trigger once.
Living center critics suggest that’s because those institutions are both operated and regulated by the Texas Department of Aging and Disability Services, creating a conflict of interest that keeps the state from punishing itself for inadequate treatment at the centers, even when it leads to patient deaths or severe injuries. In February, a man died at the Austin center after staffers ignored his worsening medical condition.
“They’re policing themselves,” said Dennis Borel, executive director for the Coalition of Texans with Disabilities. “There’s not enough independence.”
Aging and Disability Services spokeswoman Cecilia Cavuto says the agency, which receives money from the federal government to regulate Medicaid standards at the living centers, has “firewalls” that prevent conflicts of interest.
The regulatory division is separate from the operational side, and long-established protocols forbid those groups from collaborating during investigations and inspections. Investigators make unannounced visits to the centers. The identities of whistle-blowers must be kept anonymous, and all Medicaid-related disciplinary actions are approved by the regulatory division’s commissioner.
Ultimately, both divisions answer to the same boss: Aging and Disability Services Commissioner Jon Weizenbaum. Weizenbaum was not available for comment because he was in Washington, D.C., at a previously scheduled meeting. Cavuto says the commissioner plays no role in the enforcement decisions.
The state Health and Human Services Commission — which oversees Aging and Disability Services — says it will be exploring “the appropriateness of our agencies regulating our own facilities” during an organizational review scheduled for 2014-2015.
“We’ll be looking to see if we can do even more to ensure our facilities meet the highest standards possible,” said spokeswoman Stephanie Goodman.
Although the Austin center’s federal money is safe, regulators have decided to put the center on a “system improvement agreement,” a contract in which the state agrees to make specific changes within predetermined timeframes, Cavuto said. Independent monitors will assess that progress, and there will be penalties if the living center doesn’t reach its milestones, she said. The details of that agreement have not yet been worked out.
State regulators almost never pull its money from intermediate care facilities, which not only include the living centers, but small community homes as well. Since 2009, state regulators have conducted 176 investigations that resulted in 90-day termination warnings. Of the facilities investigated, 115 were privately owned. None lost their Medicaid certification.
Federal investigations are not supposed to be punitive, Cavuto said. Instead, they are used to help facilities ensure residents are safe.
By June 17, the Austin center had managed to resolve most of its latest problems, including client safety and protection issues. But it didn’t correct its lack of “active treatment,” such as teaching residents how to get dressed, brush their teeth or control aggression.
Losing its Medicaid certification would be a blow to the Austin living center, as the $29 million in federal funding it receives makes up almost 60 percent of its budget. To get that money back, the facility would have to reapply for certification, a process that could take years.
States across the country handle their Medicaid oversight in different ways. While some operate and regulate their own developmental facilities, others divide those duties among separate agencies. California, for example, uses its Department of Developmental Services to run its facilities and the Department of Public Health to enforce Medicaid violations.
Recently, those agencies went head to head over poor care at the Sonoma Developmental Center. Sonoma voluntarily gave up its certification at four of its 10 on-campus residences and agreed to overhaul the facility.
State investigators’ latest threat to the Austin center — the seventh since 2009 — came after they discovered problems they said endangered all 300 residents. Late last year, one patient was seriously burned while being bathed by a staffer. In April, a woman who was supposed to be closely supervised hurt her eye so badly that it had to be surgically removed.
Agency officials say they’ve been trying to get the Austin center on track for years. Since 2010, it has removed three directors and recently hired its fourth.
Former director Charles Bratcher, who resigned under pressure last month, said the staff always took Medicaid investigations seriously and he was grateful to keep that federal money, even when problems persisted. But he also suspects the facility would lose its certification if regulators were not housed at Aging and Disability Services.
“The whole thing that you learn is that it doesn’t matter what they say because, in the end, somebody will come bail you out,” he said. “Why are we wasting our time if they’re going to do that?”
Andrea Ball has covered social services for the American-Statesman since 2002. Her recent work has included reports about patient care deficiencies at state facilities for people with mental illness and intellectual disabilities, and about state hospital psychiatrists with a history of sexual improprieties.