Author: Will Humble

AzPHA is a supporter of SB1710 which 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 the hospital operations would be managed by an independent governing body. The hospital Superintendent would report to the governing board rather than the ADHS Director. ADHS would then regulate the facility without an institutional conflict of interest.

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

There is evidence that this occurred during the Ducey Administration. Even after multiple suicides and once homicide, ADHS‘ licensing division concluded that no operating deficiencies led to those deaths.

For context read this article by Amy Silverman: Patient deaths at Arizona State Hospital raise questions about staffing levels, lack of oversight and this piece by Mary Jo Pitzl at the Arizona Republic

March 23, 2023 Update: SB1710 passed the full Senate with a vote of 27-2 and has passed all assigned committees in the House. It awaits a final floor vote in the AZ House of Representatives following Committee of the Whole. If it isn’t amended on the House floor and passes it would go to Governor Hobbs’ desk for a signature w/o returning to the Senate.

If SB1710 is passed and signed, the responsibility for running the Civil and Forensic units of the Arizona State Hospital would transition to an independent board appointed by the governor beginning 1/1/25. The ASH Superintendent would report to the new Board. ASH would still be regulated by ADHS, but the institutional conflict of interest would be removed as ADHS would no longer be responsible for actually running the hospital.

ADHS leadership during the Ducey administration and even ADHS’ communications director during the Hobbs era has suggested that the Center for Medicare and Medicaid Services provides sufficient independent oversight of ASH, an oft-told and misleading statement. To clear things up, we prepared this review of how the Arizona State Hospital is ‘regulated’ under the current model. We close with a review of why SB1710 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.  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 ASH’ Civil Hospital to 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.

Civil Unit 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 hospital. The lack of independent regulation and oversight results in poor accountability and can lead to unchecked substandard care when ADHS leadership soft-pedals regulatory oversight to give the appearance that the facilities are providing care that meets standards. There is evidence that this occurred during the Ducey Administration.

SB1710 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.

Sadly, Governor Ducey’s team killed the bill in House Rules last year…  but we’re confident that this year’s commonsense intervention (SB1710) will also prevail in the House. In the meantime, we’ll continue our advocacy to get this bipartisan bill to Governor Hobbs for her signature.

View Legislative Council’s Bill Summary