Nurse tells court Des Moines home for the elderly needs no license

By: - July 8, 2021 4:39 pm

City and state officials say this single-family residence in southwest Des Moines is operating as an unlicensed care center for five elderly residents. (Photo by Clark Kauffman/Iowa Capital Dispatch)

A central Iowa nurse has acknowledged in court she is exploiting a potential gap in state regulation by using two separate corporations to provide housing and health care services for the elderly in an unlicensed setting.

City and state officials, meanwhile, say jurisdictional issues have prevented them from sending fire-safety inspectors into the Des Moines home where five elderly people now reside.

The Iowa Department of Inspections and Appeals and the City of Des Moines are taking Sutton Senior Home and its owner, Anne Porter of Ankeny, to court. They are arguing the single-family house, located just off Park Avenue at 3219 SW 39th St., is operating illegally as an unlicensed care facility. They allege DIA inspectors visited the house last fall and concluded it was functioning as either a residential care facility or assisted living program.

According to court records, DIA inspectors found that the six elderly people then living at Sutton Senior Home were receiving home health care services from A-Plus Home Care Services, which is an Ankeny company owned and run by Porter. The services included assistance with personal care, health-related care, and 24-hour living assistance.

DIA concluded Porter was circumventing state laws requiring licensure and inspection of care facilities by using one corporate entity to provide housing, as a landlord would, and another corporate entity to provide health care, as a home-health agency would.

In responding to those allegations, Porter’s attorneys have stated in court filings that by delivering housing and health care through two “separate and distinct legal entities,” Porter is taking the position that she need not be licensed.

Porter, who is a registered nurse, is merely a “residential landlord in the business of leasing rooms to tenants,” according to filings by Porter’s attorneys. They acknowledge that the residents of the home — now down to five in number — are all elderly individuals “who need varying amounts” of care, but say those services are being provided by Porter’s other company, A-Plus.

Porter’s attorneys are now seeking a declaration from the court that the 39th Street house is neither an assisted living program nor a residential care facility. DIA’s position is that it has consistently required licenses of health care facilities and assisted living programs that are “operating in totality through the use of an associated home health agency.”

Porter has not responded to calls to her office. A man at the 39th Street home said Thursday no one was available to speak to a reporter.

It’s not clear what steps, if any, are being taken to protect the residents of the home while the licensing issue is litigated in court.

Iowa care facilities for seniors are normally subject to fire-safety inspections by the state fire marshal, but that office says it’s legally barred from inspecting places like Sutton if they are not licensed. Traditional rental properties, such as apartment buildings and multi-family houses, are normally inspected by the city, but the city’s official position is that Sutton is a care facility and thus not subject to city inspections.

Officials at both the state fire marshal’s office and the city’s Neighborhood Services Division said Thursday they are unaware of any fire-safety inspections taking place at the 39th Street house even during the eight months the city and state have known of the home’s existence. According to the county assessor’s office, Sutton Senior Home has three bedrooms for residents that are located in the basement of house.

Asked what specific steps DIA has taken to ensure the safety of the residents at the home and what it plans to do in the weeks ahead, department spokeswoman Stefanie Bond said the agency is “currently pursuing multiple avenues of recourse.” She did not elaborate.

Court records don’t indicate how long Sutton Senior Home has been in operation, but Better Business Bureau records indicate it has been open for at least four years.

On her website, Porter says she has been a registered nurse for more than 40 years and holds a master’s degree in health care administration. Court records show that in addition to running Sutton Senior Home and A-Plus, Porter also serves as a court-appointed guardian for several individuals in central Iowa.

The tactic of using one corporation to provide housing for elderly or disabled Iowans, while another corporation, run by the same people, provides health services, is not new.

In 2009, Dubuque Retirement Community, then home to 116 seniors, attempted to avoid state oversight and regulation after being repeatedly penalized by inspectors for poor-quality care. The owners of the facility announced plans to give up their state license as an assisted living center so the property could operate as an apartment complex subject only to landlord-tenant laws, while health care services were delivered by a wholly owned subsidiary that functioned as a home health agency.

The company indicated that by separating the housing component from the health care services, it would be able to provide the same care to the same seniors in the same building, but without a license and all of the attendant regulations and inspections. The Dubuque facility is now a fully licensed assisted living center operating under new ownership.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.