We are big supporters of SB1716 Arizona State Hospital; Governing Board. The bill (by Senator Gowan) would change the governing structure for the Arizona State Hospital (ASH) from one in which the Arizona Department of Health Services both runs and ‘regulates’ ASH to a model in which ASH has independent oversight, building much better checks and balances into the system of governance. SB1716 will be heard in the House Health & Human Services Committee on Monday, March 21 at 2pm.

SB1716 sets up a new Governing Board which would oversee operations at ASH. The Superintendent would report directly to the Governing Board rather than the ADHS Director. Here’s an article by Mary Jo Pitzl at the Arizona Republic with more detail. The Arizona Department of Health Services would then be able to regulate the Arizona State Hospital free from conflicts of interest.

Why is that important? It’s simple. Right now, there is a huge conflict of interest because the ADHS Director is responsible for both running and regulating ASH. It’s never a good governance model to have an entity regulate itself! It’s very simple for the ADHS Director to send an implicit (or even explicit) message to her or his team to go easy on ASH to keep things quiet. Indeed, recent complaint investigations of serious allegations often find ‘no deficiencies’. That’s just hard to believe, especially when the fox is watching the henhouse.

For context read this article by Amy Silverman: Patient deaths at Arizona State Hospital raise questions about staffing levels, lack of oversight

ADHS Leadership has in the past suggested that there is independent oversight of ASH via the Center for Medicare and Medicaid Services & the Joint Commission. Some of their statements have been misleading. To clear things up, we prepared this review of how the Arizona State Hospital is actually ‘regulated’ under the current model. We close with a review of why this bill is so important.

Overview

There are 3 components to the Arizona State Hospital (ASH)…  the Civil Hospital, Forensic Hospital, and the Arizona Community Protection and Treatment Center (ACPTC). The regulatory oversight differs for the 3 components that make up ASH.

Civil Hospital

The ASH Civil Hospital provides treatment and care for persons that are court ordered to the facility for psychiatric care.  The Civil Hospital at ASH is run and regulated by the Arizona Department of Health Services (ADHS). ADHS’ Licensing Division is responsible for regulating the Civil Hospital which the ASH Superintendent is responsible for its operation.

State Licensure

State law allows healthcare institutions like ASH’ Civil Hospital to enjoy a Deemed Status license from the ADHS. That means that the Civil Hospital can hire an accrediting body to accredit the Civil Hospital. Once accredited, the Civil Hospital turns in the accrediting report to the ADHS Licensing division, and the ASH Civil Hospital receives a License from the ADHS – even though the ADHS doesn’t do an inspection of the facility before issuing the license.

The ADHS pays The Joint Commission (TJC) to accredit the Civil Hospital. ASH Civil started hiring TJC to do that work when I was Director. I think we paid TJC something like $10K for that service. Here’s a link to the deemed status licensing information about the Civil Hospital: Licensing Statement of Deficiencies (azdhs.gov).  ADHS accepts the accreditation in lieu of an inspection and issues the state license to operate on that basis.

While the ADHS doesn’t do any annual inspections of the Civil Unit (because of its ‘Deemed Status’), the ADHS Licensing division can send out surveyors to investigate complaints about the care at the Civil Hospital when they receive them. If the complaint is substantiated, the ADHS Licensing Division can require corrective action and has some enforcement authority like issuing civil money penalties or placing the facility on a provisional license or even seeking revocation.

You can see that ADHS ‘complaint investigations’ seldom substantiate the complaints they receive and seldom find deficiencies (with a few exceptions). Here’s the recent compliance record: Licensing Services Facilities Report (azdhs.gov)

CMS Certification

Because Medicare and Medicaid (AHCCCS in Arizona) pay for some of the services at the ASH Civil Hospital, CMS requires that the ASH Civil Hospital be Certified to their certification standards. However, CMS doesn’t do their own certifications. They contract with the ADHS Licensing staff on the 4th floor of the ADHS building to conduct the certification inspections.

ADHS licensing staff go out and check at the ADHS ASH Civil Units to see if they’re adhering to CMS’ certification standards (which are a little different from the actual ADHS healthcare Institution regulations). ADHS Licensure then sends their report to CMS Region IX in San Francisco and the report is blocked, copied, and pasted and is sent back on CMS letterhead.

Summary

ADHS both runs and regulates the ASH Civil Hospital. ADHS leadership often suggest that there are checks and balances in the regulatory system to send the message that the monitoring of care is rigorous. The fact is that CMS Certification is not an independent review of care at the Civil Hospital because the work is conducted by ADHS Licensing staff.

While it’s true that The Joint Commission accreditation is separate from ADHS, the ADHS voluntarily pays TJC for the accreditation surveys and TJC views ADHS as a customer/client. TJC is not a regulatory body, and they have no enforcement authority. TJC Accreditation inspections that document deficiencies can sometimes jeopardize their contract with their customer, which has a chilling effect on documenting deficiencies.

Forensic Hospital

The ASH’ Forensic Hospital provides care for patients that are determined by the courts to be “Guilty Except Insane” or “Not Guilty by Reason of Insanity”.  The Forensic Hospital is also both run and ‘regulated’ by the ADHS Licensing Division.

State law allows healthcare institutions like ASH’ Forensic Hospital to enjoy a Deemed Status license from the ADHS. That means that the Forensic Hospital can also hire an accrediting body to accredit the Forensic Hospital. Once accredited, the Forensic Hospital turns in the accrediting report to the ADHS Licensing division and receives a License from the ADHS – even though the ADHS doesn’t do an actual inspection of the facility. The ADHS also pays The Joint Commission (TJC) to accredit the Forensic Hospital.

When the ADHS Licensing division receives complaints about care at the Forensic Hospital they can send out surveyors to investigate those complaints. If the complaint is substantiated, the ADHS Licensing Division can require corrective action and has some enforcement authority like issuing civil money penalties or placing the facility on a provisional license or even seeking revocation.

You can see that ADHS ‘complaint investigations’ seldom substantiate the complaints and seldom do they find deficiencies (with some exceptions). Here’s the recent compliance record: Licensing Services Facilities Report (azdhs.gov)

Because CMS doesn’t pay for services at the Forensic Hospital there’s no need for CMS Certification of ASH’ Forensic Hospital.

Arizona Community Protection and Treatment Center

The Arizona Community Protection and Treatment Center (ACPTC) provides residential and care services for people that are civilly committed by the courts to the facility as a ‘Sexually Violent Person’. The ACPTC is licensed by the ADHS Licensure Division. They are not accredited by The Joint Commission nor are they accredited by CMS.

Conclusion

The current governance structure for operating and regulating the Arizona State Hospital is fundamentally flawed because the ADHS both runs and regulates the facilities. The lack of independent regulation and oversight results in poor accountability and can lead to unchecked substandard care if  ADHS leadership elects to soft-pedal regulatory oversight to give the appearance that the facilities are providing care that meets standards.

SB1716 is a needed reform of the governance structure that would move operational responsibility for operating ASH to an independent Governing Board. ADHS would continue to regulate the facilities but would be relieved of the conflict of interest that comes with running and regulating the same facility.

These changes will correct the fundamental flaw in the current governance structure by providing independent regulation of ASH, resulting in better accountability and improved care.