Last December, an incapacitated Native woman in Arizona gave birth unexpectedly at a long-term care facility in a case that’s drawn national outcry. Phoenix police arrested 36-year-old Nathan Sutherland last Tuesday and charged him with one count of sexual assault and one count of vulnerable adult abuse after police linked his DNA to the newborn baby boy.
The case in Arizona raises a specter no one wants to believe: that the very people who tend to the needs of others, around the clock and seven days a week, may ultimately be responsible for victims’ harm. In turn, it poses difficult questions about the level of oversight and accountability afforded to patients in long-term care facilities.
At the center of the recent scrutiny is Hacienda HealthCare, a privately run facility based in Arizona that specializes in care for chronically ill and developmentally disabled patients. The company’s longtime CEO abruptly resigned once news of the victim’s apparent assault came to light. Two doctors subsequently stepped down. Other staffers at the facility were also seemingly unaware that the patient was pregnant until she went into labor.
A panicked 911 call from a nurse just as the baby was being born shows the extent to which staffers at Hacienda were taken off guard by the pregnancy. The victim, a 29-year-old member of the San Carlos Apache Tribe, had been a patient at the facility since the age of 3 following a near-drowning accident that left her incapacitated. Contrary to previous reports that she was comatose or in a persistent vegetative state, the woman’s family says she has some mobility in her limbs, head, and neck, and can make facial gestures and respond to sounds. According to court records, her last physical was in April—about 37 weeks prior to her giving birth—when physicians noted her “firm belly,” but gave no indication that she might be pregnant.
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Sutherland’s employment was terminated “the moment our leadership team learned of his arrest,” a spokesperson for Hacienda said in a statement to the press last Tuesday. Still, many unanswered questions surround the case: Has Sutherland assaulted other patients in the past? Were his colleagues aware of his behavior?
Compounding the chain of alleged missteps at Hacienda are chronic issues that have dogged the long-term care industry for decades. High turnover rates and low staffing levels have strained facilities nationwide, making it difficult for administrators to ensure that training is adequate and employee standards are met.
“It’s a huge problem,” says Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy organization that champions oversight and accountability. “The wages are low, the conditions are difficult, and the facilities are choosing to put their resources elsewhere—not only does that impact quality care, it also raises the potential for abuse to occur.”
Indeed, staff retention has long been an issue for long-term care facilities. The federal government does not specify a minimum ratio of staffers required on-duty relative to the number of patients, meaning it is up to individual facilities to determine how many nurses and supervisors should be available during nights and weekends to do hands-on, around-the-clock care. According to the Bureau of Labor Statistics, the median wage for licensed practical nurses is $45,000 per year. Smetanka noted that the relatively low wages, paired with the frequent difficulties of the job, give few incentives for quality nurses to stick around long.
Studies show that for decades, the average annual turnover rates for licensed practical nurses in long-term care facilities have ranged between 55 percent and 75 percent. Retention is especially difficult with nurses aides. At their worst, annual turnover rates for those positions were found approaching 100 percent nationally.
The squeeze on staffing is likely to get worse over time. As the Baby Boomer population ages, the Department of Labor expects the need for qualified nurses at residential care facilities to rise dramatically. Whether those facilities will have the means to recruit top talent to those positions, however, is another question entirely.
Research consistently shows that high turnover rates at long-term care facilities can adversely affect care. One study found that high turnover among certified nurses assistants was associated with “significantly higher odds of pressure ulcers, pain, and urinary tract infections” among patients. While residents and their families have long-complained that staffing deficiencies were having a negative impact on the quality of care, Smetanka says, little has been done to fully address the underlying causes of the staffing shortages. “This has always been a problem—you can go back decades and it still is the number-one complaint,” she said.
The vetting process for staffers who are constantly in and out the door gets difficult for providers, opening up the possibility that potential perpetrators may sometimes slip through the cracks. Hacienda has already had problems in the past with employee behavior. As recently as 2013, administrators fielded complaints that a male employee made sexually explicit remarks about patients—in one instance, the employee reportedly crossed the line while giving a patient a bath, saying he was going to have a “happy morning” after pointing to the patients’ semi-erect penis.
All long-term care facilities, like Hacienda, are required by federal law to carry out full background checks on prospective employees. But advocates say the system often fails to root out bad apples. Prior to being arrested Tuesday, Sutherland had no criminal record and passed his background check without raising any red flags.
“A lot of perpetrators don’t have criminal records for committing sexual harm because most people don’t report their sexual assaults. Or when they do, it doesn’t always lead to a conviction,” Tasha Menaker, a spokeswoman for the Arizona Coalition to End Sexual and Domestic Violence, told Rewire.News.
And just because a prospective employee’s background may appear clean at first glance, that doesn’t mean they have nothing to hide. As Smetanka notes, the vetting process for long-term care facilities varies from state to state. Some just look into criminal records within their own state, even though suspected offenders may move around to hide their criminal past, or jump from facility to facility to obscure intense scrutiny.
Advocates have long considered these types of perpetrators to be opportunistic in targeting particularly vulnerable populations. In recent years we’ve seen a number of cases involving long-term care providers who’ve abused their power, and facility administrators who’ve excused their behavior.
The case in Arizona highlights exactly such a problem. The woman has not been identified. But local activists say given the extent of her disabilities, and her around-the-clock dependence on others day-in and day-out, they were expecting that the perpetrator worked closely around her.
“We weren’t surprised it was an employee, because an employee has significant access, while the survivor couldn’t speak, she couldn’t fight back,” Menaker said.
Since news first came to light, Hacienda has agreed to increase its security and staffing levels to ensure that male employees be accompanied by another person whenever treating female patients. State agencies have ordered Hacienda to install security cameras at its facilities and bring a third-party manager on the payroll to oversee care.
And now, Arizona lawmakers are raising alarms that Hacienda hasn’t been licensed by the state in more than 20 years. Thanks to an obscure 1997 law, immediate-care facilities like Hacienda are exempt from state licensing requirements. An investigation by the Arizona Republic found that a separate state law gave Hacienda a remarkable amount of power to charge high rates—Hacienda effectively held a monopoly on the market of privately owned, immediate-care facilities until that law was changed in 2015.
Arizona lawmakers say they plan to introduce legislation to change the 1997 law, which would add an extra layer of state-level oversight to compel compliance from facilities. Gov. Doug Ducey (R) has indicated he would support such a bill if it made it to his desk. But as the state moves forward with proposals to regulate the industry, the federal government is scaling back: In December 2017, the Trump administration changed its regulatory policies to discourage the use of fines against nursing homes cited for wrongdoing.
In the meantime, advocates are urging families who have loved ones in long-term care to remain vigilant toward signs of abuse or changes in behavior. Each state has an ombudsman program to help facilitate oversight and investigate complaints filed by individuals. But in many cases, the buck stops with facility administrators and regulators to ensure that enough nurses are available for around-the-clock care and that supervisors are available to manage and oversee staff.
“The fact that they have not really addressed the short staffing issue has been problematic,” Smetanka said. “I think there is more they can do to protect the residents in their care.”