State agency says law seals data on care residences

The men and women are elderly, mentally ill or mentally retarded -- Arkansans who through time or circumstance cannot take care of themselves.

Their stories -- how they eat, sleep and even die -- lie hidden among the files at the state Department of Human Services.

At any time, between 4,000 and 5,000 adults rely on private residential care facilities, which may be homes or former motels. Residents may need help taking medicines and bathing. They may need meals prepared. And they may not have families willing or able to take them in.

The department licenses 138 centers and its Office of Long Term Care inspects them twice a year.

Millions of dollars in state and Medicaid personal care funds flow through many of these centers.

Yet, the department's officials refuse to release reports on inspections and investigations -- or even the names of facilities where conditions are life-threatening -- to the public or to relatives of the residents.

On Wednesday, the department notified the owners of three centers that their facilities would be closed by March 19 because the homes were unfit to live in and potentially dangerous.

Citing Arkansas Revised Code 20-10-228, titled "Information Confidential," the department officials wouldn't identify those facilities or their owners. That statute states:

"Information received by the department through inspection, or otherwise, authorized under 20-10-213 - 20-10-228 shall not be disclosed publicly in such manner as to identify individuals or institutions except in a proceeding involving the question of licensing or revocation of a license."

In contrast, reports on nursing homes, which also receive federal funds, are available to the public with the names of the facilities and owners.

Both the department officials and a spokesman for a residential care facility association seem perplexed by the statute.

"We do believe that RCFs [residential care facilities] have some Freedom of Information protections that nursing homes do not," said the department's spokesman Joe Quinn. "There are certainly documents that are not releasable.

"But daily we turn out nursing home inspections to reporters and members of the public. Those inspections refer to patient 1, 2, and 3. They are not identified," he said. "If you are a family member contemplating putting grandma in a nursing home, you can get a feel for how business is done there."

Kent Schroeder, executive director of the Arkansas Residential Assisted Living Association, said he frequently receives inspection reports showing the names of the residential care facilities and the owners.

"Anytime in the past that I wanted to look at a survey, I only had to trot in there and ask to see them," he said. "I got some two weeks ago with nothing blocked out and yet Wednesday, they wouldn't give me the names.''

Past issues of the Arkansas Democrat quote from inspection reports, naming facilities and owners.

But when the Arkansas Democrat-Gazette made a Freedom of Information Act request for reports of inspections of Alternatives Plus, a facility in DeWitt, attorneys told Quinn that the paper could not have the documents because the reporter knew the name of the facility. Releasing them would violate the law, they said.

Quinn suggested the request be amended to ask for inspections of all 138 facilities.

That would have required the department to copy and redact thousands of pages of documents. Frank Gobell, an attorney in the Office of Chief Counsel refused, citing time and manpower requirements. Quinn later said that was a mistake and the department would strike names from all the documents.

Ironically, regulations that govern residential care facilities require posting of the latest inspection citing deficiencies or violations.

Gobell suggested that family members go to each facility to read the posted inspections.

But many of the residents have no family, or their families live too far away to travel to several centers before determining which have good inspections.

"If they have to be posted in the facility, I don't see any reason why the public couldn't see them at the Office of Long Term Care," Schroeder said. "We certainly would not oppose anyone who wanted to fix this law."

Dennis Schick, executive director of the Arkansas Press Association, said he'd like to see the inspections open to the public.

"When public funds are being used for these facilities, our feeling is that the public has a right to accountability on the part of the owners and also on the actions of state inspectors," he said. "I was surprised to come across this statute and would like to see it amended. There is still time to fix it in this Legislature."

Quinn said the department is simply following the law and would not oppose changing the law to open the inspection files.

"If you are going to use taxpayer dollars to regulate a service, you need to take information gained with taxpayer money and put it where taxpayers can use it," he said. "Anyone can propose legislation to change the law as it stands."

But the department's Director Kurt Knickrehm said the agency would not call for changing the law.

"That is not a fight that we care to initiate during this legislative session," he told the Democrat-Gazette. "If you decide that you want to amend or repeal these statutes, we would be happy to assist."

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