By now you’ve heard the disturbing story of a 29-year-old resident of Hacienda de los Angeles who gave birth a couple of weeks ago. What’s troubling about the birth is that the mother was unable to give consent because of the nature of her medical condition. In short, it means she was raped and delivered a baby while under the care of Hacienda de los Angeles.
Quite honestly, it’s astonishing that the facility and its staff apparently failed to detect – or report -- the sexual assault or pregnancy until after the baby was born and in medical distress. Arizona law (ARS 46-464) requires people that have responsibility to care for a vulnerable adult to report any abuse or neglect that they suspect. Failure to report is a Class 1 misdemeanor.
With such resources now deployed with the various investigations including the Phoenix Police Department, we will eventually most likely learn whether Hacienda staff knew but did not report the pregnancy or whether the care being provided was such that staff did not discover the pregnancy until the woman gave birth.
Arizona and local law enforcement officials are investigating the matter – but they may be impeded by this troubling fact: Hacienda de los Angeles isn’t required to have a state license (and doesn’t have one).
How is this possible?
Hacienda de los Angeles is classified as an intermediate care for persons with intellectual disabilities. Facilities in this class provide more intensive services than a residential group home for persons with intellectual disabilities but different services than a skilled nursing facility.
When I learned through the media of the assault and birth, I went to the ADHS’ AZ Care Check website to look at the regulatory compliance record for the facility. I was puzzled when I discovered that the facility didn’t have an ADHS License number. They have an identifying number for their Certification to get paid by the Centers for Medicare and Medicaid Services (CMS) -- but no state license.
In digging deeper- I discovered that this class of facility doesn’t require a license from the ADHS. They are specifically exempt. The exact statutory language is located in ARS 36-591(E) where it states that: “An intermediate care facility for persons with an intellectual disability that is operated by the division or a private entity is not required to be licensed under this section if the facility is certified pursuant to 42 Code of Federal Regulations section 483.400”.
That’s not to say that there’s no oversight of the facility. There is. ADHS has conducted annual certification inspections under a contract from CMS every year for the last several years, and you can see that there are several deficiencies that have been identified (and corrected) over time.
What’s problematic is that the state has no direct regulatory authority over the facility because they’re not required to have a state license (if they’re CMS certified). That means there’s no direct mechanism to compel compliance with state care regulations – because there’s no license to suspend, put on provisional status, or to revoke.
With information that will be discovered in the coming days and weeks, the federal government could elect to decertify the facility and to no longer pay for services provided there, and/or our state Medicaid agency could decide to no longer approve placement of their members at the facility- but the state has no direct authority to compel compliance -- again, because there’s no state license to use as leverage to compel compliance with state licensing requirements.
Intermediate care facilities were exempt from state licensing requirements back in 1997 when HB 2247 was passed by the legislature and signed by Governor Hull.
Perhaps this case provides an opportunity for our state elected officials to re-examine the wisdom of exempting intermediate care facilities from having a state license.