State, Local Officials Have Little Power Over Troubled Adult Care Homes

When the owners of several adult care homes walked away from their duties, there was little recourse for local or state officials who wanted to prosecute or punish the owners for abandoning dozens of residents. And the system has been designed that way. The second of two parts.

By Rose Hoban

Early in the morning of Thursday, Jan. 24, a call came into the Department of Social Services in Montgomery County from staff at the Tillery Chase adult care home. The owners, Amy and Larry Patton, were nowhere to be found, and the facility had been emptied of anything valuable – televisions, computers, even the ice-maker.

Richard Evers, a social worker at the county DSS, knew the facility well; Tillery Chase had been the subject of a litany of complaints over the past three years and Evers had been sent out multiple times to investigate problems there.

And even though Evers knew the facility was troubled, he also knew there was little he could do to shut it down.

That’s because adult care homes with problems are given multiple chances to fix them, even as dozens of vulnerable people might still live there. State regulations enabling people like Evers to close such troubled facilities have protected the interests of owners over residents. And lawmakers have been reluctant to tighten regulations on an industry that has a facility in nearly every state lawmaker’s constituency.

And even when owners abandon a facility, or have their facility closed, those same owners have to wait only a year before applying for licenses to reopen.

Since Tillery Chase and the Greensboro-based Serenity Care Rest Home, both owned by the Pattons, were abandoned in January, five other residences in New Hanover County also closed on short notice. All told, county social service workers in Montgomery, Guilford and New Hanover counties have had to scramble to find housing for more than 130 vulnerable seniors and people with mental health disabilities in less than a month.

Cleaning up the mess

On Tuesday, Jan. 22, the Pattons told officials at the state and county DSS agencies in Guilford and Montgomery counties that they planned to close their facilities.

Evers said that after he got that initial call, he and other workers from the Montgomery County DSS, along with staff at the facility, worked all that day and the next to start the process of finding placements for residents.

“Everybody had to have a placement that was appropriate. We had some people with mental health issues, some with physical health issues,” Evers said. “We sent out a listserv notice to as many providers as we could and put them in contact with the residents. We looked at their profiles; we had a doctor send a physician assistant.”

But when Thursday morning came, and it was clear the Pattons had disappeared, Evers and his team went into overdrive. At the Pattons’ other facility in Greensboro, Guilford County DSS workers were experiencing the same scramble to place residents.

In both counties, officials said workers at the facilities stayed on, helping residents get organized, packing up and saying good-bye, all the while knowing they would likely never see pay for their work.

By seven that evening, Evers said, they had found a place for everyone. “It was complicated; the residents still had to be fed, medicated. It’s just like moving out of your home.”

Evers said placement for some was complicated by changes in the state’s mental health system: Some residents came from counties where the mental health management agencies have merged with other counties or had been absorbed by the new agencies being formed over the past six months.

Little recourse, light penalties

Evers and his county DSS manager called the local district attorney, who started looking into whether he could prosecute the Pattons for their actions.

“From a moral perspective, leaving 44 elderly and otherwise handicapped people out in the cold is something that should be criminal,” said Darren Allen, the assistant district attorney in Montgomery County. “The sheriff was interested in prosecuting, and there are things related to neglect in a domestic setting. But I don’t know if there’s anything that can be charged. There’s nothing that someone could go to prison for.”

Allen said the only recourse for the state was the fines that had already been levied against the Pattons by the Division of Health Service Regulation (DHSR).

“We’re not going to be able to proceed,” Allen said, noting that he found this frustrating.

Janet Schanzenbach from the state association for long-term care facilities said she had no idea the Pattons had these issues. They were new members of her association, and Schanzenbach said she thought the Pattons had only joined so they could sign onto a class action lawsuit being filed against the state by her organization.

She had not been notified their license had been revoked.

“There are about 300 adult care homes, and we hear about the problems, which are a small percentage of the facilities that are out there,” Schanzenbach said. “When there’s a facility that’s not up to par, it drags us all down. Bad news always makes the press; good news doesn’t. But there are a lot of good providers out there.”

“There are facilities like that in almost every county,” said Evers, who had been in the Pattons’ facility many times investigating complaints, adverse incidents and violations of state operating codes. But Evers said that even though there was a long record of problems, he could never have shut the place down.

“I wish sometimes this process didn’t have to take so long. I wish they didn’t have to make so many mistakes before we can do something,” he said.

Adult Protective Services cannot close a facility simply for health and safety violations. If no one is physically harmed, there’s little recourse for county workers like Evers other than to simply record horrendous living conditions.

State statute describes a circuitous process of penalizing a problematic adult care home. Depending on the severity of a violation, once a complaint gets investigated and substantiated it might go to a state Penalty Review Commission convened by the state regulatory agency, the DHSR. There the panel reviews the evidence, but no one is under oath, and the panel has no teeth.

The panel decides whether a violation merits a monetary penalty and recommends the amount the penalty should be.

“Once you get the penalty written, that’s just the tip of the iceberg, and then the lawyers get involved, and they make things take excruciatingly long.” Evers said. “And the whole time, there are still people being placed at risk.”

The ultimate decision is left to the chief of the adult care licensure section of DHSR. If a penalty is levied, a letter gets sent to a facility’s owners and they’re given 60 days to pay.

“Then you might have a situation where they claim bankruptcy,” said Dennis Streets, head of the state Division of Aging and Adult Services. “If that happens, the ability to recover those fines is going to be an issue.”

Circle of pointed fingers

The inability to close poorly run adult care homes is also a frustration to Vicki Smith, head of Disability Rights North Carolina. It was Smith’s organization that filed a complaint several years ago with the federal Department of Justice over the practice of housing people with mental health disabilities in adult care homes (see box left).

Many homes have been found to house numerous residents with mental illness, Smith said, but even after several years of DOJ investigation in North Carolina, no homes have been closed for being institutions of mental disease.

State regulators said that while they might want to shut down a facility, their hands are tied by what legislators give them latitude to do.

“When I go to look at making licensure decisions, we have to go to counsel and the attorney general’s office, and we have to review situations and look at the ability to prosecute,” said Barbara Ryan, chief of the adult care home licensure section at DHSR. “If we’re looking at closing a facility, one of the most effective things we can do is suspend admissions.”

Ryan couldn’t say much about the case of TIllery Chase because the week after the Pattons walked away from the facility they filed an appeal of their license revocation.

“We look at the statute, what it says about the ability to correct problems and come into compliance,” Ryan said. “Over a period of time, we look at what was the non-compliance, were they able to correct it or did it remain uncorrected. It’s a series of looking at those issues, based on the statute.”

But the statutes are weak, said state Rep. Verla Insko (D-Chapel Hill), and the reason for that, she added, is political. Insko has butted heads with the adult care home industry for more than a decade, and she said industry representatives have done a good job of leveraging multiple small donations to lawmakers into influence.

“Every legislator has adult care homes in their community and they want the businesses there to provide jobs for their community,” said Insko of her attempts over the years to provide more oversight to the industry.

She said that some changes have been pushed through over the past decade, such as the star rating system and criminal background checks for staff, but that those new regulations were hard fought and often fell short of what advocates would have liked to see.

Those legislative decisions then determine what regulators can do.

“It’s not as straightforward as it always looks,” Insko said.“There’s always a lot of negotiation that goes on anytime that you are engaged with an industry, regulating an industry. Regulating an industry is going to cost more, it’s going to make the industry have to modify their profits in some way. And so the industry fights that all the time.”

Janet Schanzenbach from the long-term care association defended the current DHSR system of inspections and regulation. She said the system eventually roots out the bad actors. She also said that her industry is one of the most regulated in the state.

“The state has the ability, and they can close them down if they want to,” she said. “Our position is, we do not want another level of government with the ability to close facilities down, because of questions of due process. One group should have that power, and that’s the Division of Health Services Regulation.”

And even if the Pattons lose their appeal, they only have to wait a year and can then apply for a new license to run another facility.

Hoping for changes

But the system of regulation is finally under review. The recent incidents in Montgomery, Guilford and New Hanover counties caught the attention of the new secretary of health and human services, Aldona Wos.

“I brought to her attention a chain of emails and details of what had happened, ” said DHHS spokeswoman Julie Henry, “and she was appalled and concerned.” By the end of Thursday, Jan. 24, Wos had pulled together a task force to look at situations such as the one at Tillery Chase.

“One thing they’ll look at is how we can potentially identify homes that might be at risk, perhaps as early as the licensing process,” Henry said. “And, two, what consequences could be in place for any owner that would take this kind of action, leaving individuals without a place to live, without allowing adequate time for state regulators to find placement elsewhere.”

Task force leader Dennis Streets said the group had already talked with the office of Attorney General Roy Cooper and the state association of district attorneys about what penalties might be levied on owners like the Pattons.

“We’re also trying to look at the prevention side, working with counties to anticipate if there are other situations where they might be in need of doing pre-planning for possible incidents,” Streets said.

He noted that the DSS workers in Guilford and Montgomery counties had an easier time responding when the Pattons abandoned their facilities because they had crisis teams already in place. But that wasn’t the case in New Hanover County when the owners of five Port South Rest Homes walked away in early February. There, it took longer to place residents left in the lurch.

Disability Rights North Carolinas’ Vicki Smith said she’s watching the process with reservations. She said she’s heard rhetoric about improving the industry before, but seen few results.

“The McCrory administration is talking about greater accountability and the fact that state employees really need to do their jobs,” Smith said. “So when state employees go out and find bad places, they need to be able to shut them down. People with mental illness and frail elderly don’t deserve to live in homes with these kinds of conditions.”

Insko said she too will be watching the task force process with reservations. She said few legislators have been willing to stand up to the adult care home industry because the politics have been too difficult.

“Legislators have to be able to tolerate a lot of frustration,” Insko said, “and keep plugging away.”