Part 3: Writing their own rules

Third of four parts.

In the predawn hours of Aug. 14, 2004, a fire swept through the Twin Spruce home for the elderly near Sunbury, Pa.

Of the 43 frail residents, three - two women and a man - didn't make it out alive.

One of the two Twin Spruce employees on duty that night, a recent hire, told state regulators that she had never participated in a fire drill. She said she had been briefed for a total of five minutes on the home's evacuation plan.

Both employees wrongly believed that the home's fire alarm automatically notified the fire department, a mistake that delayed firefighters' arrival by at least 20 minutes.

It didn't have to happen that way.

More than two years before, in March 2002, stronger regulations for personal-care homes had been formally proposed in Harrisburg.

Under the rules, all homes would have been required to thoroughly train new employees about emergency exit procedures on their first working day. Within five days of a new hire, the home would have been required to hold a fire drill.

These proposals were grounded in bitter experience: At least 55 people died in personal-care-home fires statewide from 1983 to 2002 - part of a larger record of abuse, neglect and preventable deaths in Pennsylvania's assisted-living industry.

But at the time Twin Spruce burned, those new regulations had been discarded, beaten back by intense pressure from the personal-care industry and its allies in the Pennsylvania legislature. And Gov. Rendell, who took office in January 2003, had not gotten around to proposing his own version.

He eventually did, three months after the fire. His rules finally became effective in October 2005.

But the provision requiring new-employee fire drills was gone - removed at the industry's request.

The new regulations were far better than the old ones, experts agree - featuring more stringent fire-safety provisions, tougher staff-training requirements and other improvements.

However, they were weakened significantly by legislators and the Rendell administration after an intense lobbying campaign by the industry, an Inquirer investigation has found.

"Nobody's fighting for these little people," said House Speaker Dennis O'Brien (R., Phila.), who opposed weakening the rules.

O'Brien, in an interview before he became speaker, added: "I think it's campaign contributions and lobbyists. It's an inside game."

In one of its largest concessions, the administration agreed to exempt existing homes from some of the new rules. Homes open before October 2005 aren't required to have fire-retardant mattresses and more qualified staff, for example.

The Department of Public Welfare, which regulates assisted-living homes, also agreed to:

A moratorium on enforcing the new regulations - or levying any fines, including for violations of the old rules - for a year.

A host of exemptions for 20 percent of the state's personal-care homes, those that house fewer than nine residents. Small homes escaped requirements to have interconnected fire alarms, walkie-talkies for emergencies, and evacuation diagrams.

A six-month grace period on a tougher staff training requirement.

An 18-month delay for fire alarms for the hearing impaired, and on a mandate for two fire exits on each floor.

A grandfather clause exempting existing homes from having larger bedrooms for wheelchair-bound residents.

In a statement, Rendell defended the end product, saying the rules "not only benefit the providers but allowed us to raise the standard for delivering quality personal-care services in Pennsylvania."

Asked about the politics, Rendell noted only that the regulations were approved by the legislature's health committees.

Welfare Secretary Estelle Richman, the governor's key official in revising the regulations, said she made the best deal she could, given political realities.

She added that she believed the new regulations amount to a significant improvement.

"The industry is large and powerful," said Richman, who took office in January 2003 while the debate was under way. "Hundreds of operators came in and said, 'You're putting me out of business.' "

On the other side, "There were not tons of people living in personal-care homes coming in and saying, 'My life is unsafe.' "

"Keeping my standard up here," she added, raising her hand up high, "and not having [the regulations] go through doesn't help anybody."

Industry representatives say their goal was to avoid burdensome red tape without compromising resident safety. Some homes supported updated regulations.

"I don't support compromises on fire-safety standards," said Matt Harvey, a former personal-care-home executive who led an unsuccessful legal challenge to the new rules. "But there is a lot of overkill."

The moratorium on enforcement ended in October, but the new rules still are not in effect for hundreds of homes. That's because regulators agreed that the old rules would stay in place for each home until their annual inspection is completed.

The understaffed department is way behind in annual inspections, so the updated health and safety protections still are not being enforced in hundreds of homes, regulators acknowledge.

As state lawmakers and policy-makers debated the new rules, they heard a series of horror stories from advocates about the long history of deaths, abuses and regulatory failures in personal-care homes.

But those speaking for personal-care-home residents found themselves outgunned in the Capitol by a well-funded industry that launched an effective campaign of phone calls and letters, both from facility operators and residents.

As a result, the Harrisburg debate over improving personal-care-home regulations focused almost exclusively on making changes to satisfy the industry, according to interviews with key stakeholders and a review of hundreds of pages of public comments and testimony.

"They were taxpaying businesses in their districts, and legislators were hearing from them in a big way," said Sue Walther, a mental-health advocate who led a statewide coalition seeking better protections in personal-care homes.

"This was a Republican legislature. It's 'all hail to small business.' "

While its members were not major campaign donors by Harrisburg standards, the industry had operators in nearly every legislative district, and strong trade organizations in the capital.

There is nothing unusual about business owners' lobbying policy-makers to curb regulations. But in this case the industry, through lawmakers, was able to virtually dictate a long list of changes to what regulators first proposed.

Richman and others said it was made clear that if they did not meet certain key demands, the rules would not win legislative approval.

"The mail was overwhelming, and [lawmakers] saw it as a constituent issue," she said, meaning they saw the operators - not the residents - as the key constituents.

As for the residents, she said, "I think the personal-care-home population . . . tends to become an invisible population."

Personal-care homes, also known as assisted-living facilities, have always been subject to less robust government oversight than nursing homes, both in Pennsylvania and nationally.

In Pennsylvania, the regulations were seen as particularly weak, and a series of tragedies in the 1990s underscored that. In 1997, Gov. Tom Ridge flew in a helicopter over the charred wreckage of a Harvey's Lake home where 10 residents died in a fire.

In 1999, the Ridge administration began a push to update the rules. After an aborted attempt to write one set of rules covering several types of adult facilities, the administration decided to move forward with tougher regulations of personal-care homes. A draft was released in March 2002.

Facility owners reacted with outrage, saying the regulations would require expensive changes without any state aid to pay for them.

Some owners of personal-care homes made exaggerated claims, with one contending the rules would cost more than $500,000 a year and drive 40 percent of homes into bankruptcy.

Those assertions were echoed in missives from state legislators.

In November 2002, Sen. Jane Orie (R., Allegheny), wrote to then-Welfare Secretary Feather O. Houstoun, forwarding her those cost estimates.

"I know your intent is not to force the closure of these homes for this vulnerable population," Orie ended her letter. "I am anxiously waiting your reply."

Orie said she was merely trying to make the Welfare Department aware of the industry concerns, and that she would never support anything that undermined resident safety.

"My intent was not to jeopardize the safety and welfare of any of these seniors," she said.

Another western Pennsylvania senator, Mary Jo White (R., Warren), wrote a similar letter in 2002 listing a host of objections, including her opposition to a three-day-per-year employee training requirement.

"Twenty-four hours of staff training each year is too high," wrote White, who did not respond to repeated requests for comment.

When it became clear that the Ridge administration would not be able to push through the regulations in its waning days, the industry began lobbying gubernatorial candidates.

One of them, then-Auditor General Bob Casey Jr., had already angered the industry with a 2001 audit that criticized the state for, among other failings, allowing personal-care homes to renew licenses without checking to see that serious violations were fixed.

Rendell, Casey's opponent for the Democratic nomination, called for a moratorium on the new regulations - and won the endorsement of a personal-care-home industry group.

"We salute Ed Rendell!" wrote the Northern Area Personal Care Owners Association in a 2002 newsletter.

Rendell's spokesman said political calculations played no role in the governor's decisions on the issue.

When Rendell took office, he named as his welfare commissioner Richman, who believed that tougher rules were needed. Her team decided to write its own, a process that took almost two years.

One reason it took so long, Richman said, is because she also attempted, and then abandoned, a campaign to write a separate, more stringent set of rules that would have only covered assisted living for the elderly - not other types of care homes.

Other states, including New Jersey, have such rules, but Richman said the industry in Pennsylvania adamantly opposed two sets of regulations.

Richman's first version of the rules included a number of tougher provisions that brought Pennsylvania more in line with other states. It also made some key concessions to the industry.

For example, the department put in a rule that personal-home administrators have a nursing or associate degree, or a nursing-home administrator's license. The old standards said a high school diploma or GED was enough.

But because of industry objections, the welfare department added a grandfather clause - meaning the rule would not apply to the 1,500 administrators already in place.

There was also nothing in the rules that prevented an operator who had lost a license because of providing bad care in the past from running a different home - an omission that dismayed advocates for the elderly and disabled.

Even so, home operators considered the Richman proposal onerous.

The political battle began in earnest. It wasn't much of a fight.

The biggest proponents of the rules, aside from state welfare regulators, were nonprofit advocacy groups with little political clout.

Three main industry lobbying groups - and several smaller trade organizations - were united in their opposition.

Their central objection was financial. A Welfare Department study found the costs would be minimal, but the operators disagreed, arguing that some rules could cost tens of thousands of dollars and force them to hire someone to do nothing but paperwork.

Richman and her staff pushed back. Resident advocates argued that the costs were worth the gains in safety, even if they forced some marginal homes to close their doors.

"We did not feel at that point that our concerns were addressed," said Gwen Bower, a lobbyist for the Pennsylvania Health Care Association, which represents many larger homes.

"So we went to our friends in the legislature."

Other industry groups did the same. Within three months, they had achieved something rare: Identical letters to Richman from the Republican and Democratic chairmen of the committees with oversight of the Welfare Department.

The letters, dated in late January and early February 2005, asked that the regulations be "tolled" - a legal term for a delay - while the department addressed a list of 25 requested changes, including the 18-month delay on smoke detectors and fire alarms.

The list, Bower acknowledged, was written by the industry lobbying groups.

Three of the four lawmakers who sought the changes were from Philadelphia: Republican George Kenney and Democrat Frank Oliver on the House side, and Democrat Vincent Hughes on the Senate side. The fourth was Sen. Jake Corman of Centre County.

Hughes, Oliver and Corman did not return repeated phone calls and e-mails seeking comment.

Kenney said he was amazed at the number and intensity of calls and visits he got from rural legislators who were concerned about the new rules.

"There were legislators coming to the committee saying, 'Look, here's Joe Blow who operates a little nine-bedroom home in my district, and he's upset, and I want to make sure he's protected,' " said Kenney, who replaced O'Brien in 2002 as chairman of the health committee.

Personal-care homes also pushed their residents to start a letter-writing campaign - with great success. Legislative offices were bombarded with handwritten, desperately-worded pleas from residents of the homes who believed the new rules would end up pushing them out on the street.

"There were a lot of letters. This was the hottest issue that legislators have brought to me in the sense of constituents on their backs," Kenney said.

In the end, he said, he believed the rules were a reasonable compromise that better protected residents.

Industry representatives made their arguments easy to digest.

"You can't regulate bad people from doing the wrong thing," said W. Russ McDaid, chief public policy officer of PANPHA, a trade and lobbying group that represents nonprofit personal-care and nursing homes.

In a newsletter, PANPHA said it had succeeded in making the final rules "much more workable." Among other things, PANPHA took credit for knocking out the requirement that a fire drill be conducted within five days of a new hire, saying it would be cumbersome.

Asked about the 55 fire deaths in personal-care homes, McDaid said: "I don't want to sound glib about this, but there are 1,700 personal-care homes. I don't know what that statistic means or doesn't mean. . . . I don't know whether that's high or not."

It's about three times the fire-death rate for the general Pennsylvania population, according to figures from the U.S. Fire Administration.

To demonstrate how flexible the Rendell administration had been, Richman testified before a state commission that she had "worked with the legislature" and the industry "to negotiate over 30 substantive changes" to the rules.

When the dust settled, part of the industry - mostly the larger, better-funded homes - had signed off on the regulations. But large segments remained opposed.

One group sued to overturn the regulations, arguing that they were illegal. Ultimately, the lawsuit was unsuccessful, and the rules are now in effect.

O'Brien, who often bucked his fellow Republicans on health-care issues, said they do not go nearly far enough.

"After what happened to William Neff, it's inexplicable to me," said O'Brien, referring to the Bucks County resident who was murdered in a poorly regulated personal-care home in 2000. "My position was, they should either operate under the same rules as nursing homes or they should be gone."

Rendell's chief regulator of personal-care homes called the rules a fair compromise.

"I actually think the providers were not as effective as they think they were in getting the stuff reduced," said Karen Kroh, who wrote the regulations.

"Our job was to balance business needs and costs with health and safety protections for residents, and we believe that we hit just the right balance."

Critics say the new regulations don't solve a fundamental problem: a shortage of inspectors.

"They couldn't enforce the old regulations," said David Zellis, the Bucks County prosecutor who handled the Neff case. "So how are they going to enforce the new ones?"

Richman and Kroh acknowledge the need. Three years ago, worried about killing the new rules entirely, Richman made a political calculation not to ask for more inspectors.

"I told the legislature these regs would be revenue-neutral" - meaning they would not require additional money, Richman said.

In truth, she said, fixing the personal-care-home problem "is anything but revenue-neutral."

Now, Richman says she'll press for more inspectors. But she cautioned that there was a limit to how much Pennsylvanians want to spend on personal-care homes.

"These folks should not have to die," she said. "They should be able to have a respectful way to live. However, you as a taxpayer, how much of your salary are you willing to pay to be able to support these folks?"