Elder Care Watchdog Referring Fewer Complaints for Investigation• Sun Sentinel
By Dan Sweeney
A state office charged with inspecting and investigating complaints against nursing homes has become less of a watchdog under Gov. Rick Scott.
Once well regarded as a patient advocate, the office of Elder Care Ombudsman has referred an average of 3 percent of complaints to investigative agencies annually since Scott came into office in 2011, a Sun Sentinel records review shows. Under the previous administrations, between 6 percent and 10 percent of complaints were referred each year going back to 2001.
The quality of nursing homes and assisted-living facilities has come to the forefront after 12 residents at The Rehabilitation Center at Hollywood Hills died when Hurricane Irma knocked out the air conditioning. No complaints to the ombudsman’s office about nursing homes in Broward County have been referred for investigation in the past two years.
Current Elder Care Ombudsman Michael Milliken did not respond to interview requests. As part of his job, he is a registered lobbyist, and communications with the Legislature have to go through him.
“Governor Scott is proud of Florida’s long-term care ombudsman program, which is a national leader and the current ombudsman has over a decade of experience at the Department of Elder Affairs,” said Scott spokeswoman Jeri Bustamante.
The Elder Care Ombudsman is a position each state is required to fill under the federal Older Americans Act, passed in 1965. This year, Florida received about two-thirds of the complaints it did in 2011, when Scott took office. Under Scott, there have been five ombudsmen in six years.
From 2001, the first year for which records are readily available, to 2011 when Scott took over, the ombudsman’s office fielded an average of about 8,200 complaints a year. The most serious complaints get referred to an outside agency for further investigation, and the office referred an average of 614 complaints a year in that time, or about 8 percent of all complaints.
Since Scott took office, the ombudsman has fielded an average of 5,900 complaints per year and referred an average of 179 — or about 3 percent.
The Department of Elder Affairs, which includes the ombudsman program, attributes the decline to an increase in visits by volunteer ombudsmen, stopping problems before they grow into the sort of serious issues requiring further investigation.
“It is misleading … to imply that complaint investigations are the only interaction ombudsmen have with long-term care residents,” said Elder Affairs spokesperson Ashley Chambers. “One of the reasons the number of complaints has decreased is because the number of proactive visits has increased.”
According to the department, visits to nursing homes and assisted living facilities went from 3,250 in 2010-11 to 8,698 in 2016-17 — an increase of 167 percent.
“Increased presence in the facilities, assisting residents to resolve issues more regularly, has also resulted in a decrease of complaints,” Chambers said.
But Brian Lee, who was ombudsman from 2003 to 2011 under governors Jeb Bush and Charlie Crist and is now executive director of an elder advocacy organization, doubts that the drop in complaints is due to an overall improvement in the nursing home industry.
“It could be a decline in the number of volunteers, so you have fewer people going into facilities on a regular basis,” he said. “It could be frustration over the number of complaints investigated. The third reason could be there’s a chilling effect, with the public seeing that the ombudsman’s office has been muzzled, so they don’t see the program as effective.”
Although the number of volunteers felt to a low of 234 soon after Lee left the agency, it had gone back up to 326 in September of this year, the highest number since 2013, records show.
During his time as ombudsman, Lee developed a reputation as an unapologetic critic of the nursing home industry, a powerful interest group in a state where more than 17 percent of the population is 65 and older, according to U.S. Census numbers. Lee was dismissed Feb. 7, 2011, less than two weeks after he requested ownership information from the state’s nursing homes. By Feb. 16, his replacement had rescinded that request.Due to a lawsuit settlement, Lee is unable to discuss under what terms he left the administration.
A federal investigation conducted in the aftermath of Lee’s departure found that ombudsman volunteers had to be approved by the secretary of elder affairs; that the ombudsman was denied the ability to lobby the Florida Legislature; and that the ombudsman’s news releases had to be prescreened by the secretary or the governor’s office, all of which are violations of federal law, according to a 2011 report by the Department of Health and Human Services’ Administration on Aging.
After Lee, interim ombudsman Aubrey Posey was replaced by Jim Crochet, rule writer for the Department of Elder Affairs. He was considered more friendly to the nursing home industry but was placed on leave in July 2013 after accusing the Department of Elder Affairs and human resources of meddling in the office’s work. He retired in August of that year, and while another interim ombudsman, Jim Croteau, carried on, the search for a permanent replacement had to be reopened after critics said the initial search passed over qualified candidates that were too critical of the industry, according to a report in the Miami Herald.
The state finally settled on Leigh Davis, program director for the Agency for Health Care Administration, who avoided further controversy but also presided over the lowest number of complaints received — 4,960 in 2014-15 — and referred just 93 of them for investigation, the lowest percentage of referrals in any year since 2001. She was in turn replaced by Milliken in 2016.
Steps have been taken to address the illegalities found in the 2011 federal report, but Lee says the program is still not back to where it was, when volunteers were allowed to approach lawmakers about proposed regulations for nursing homes.
The minutes of a March 3, 2017, meeting of ombudsmen volunteers make clear that Milliken is to review any ideas volunteers want to bring to legislators. Volunteers “cannot speak on behalf of the program” but are free to meet with lawmakers as individuals and may say they volunteer with the program if asked.
Other state agencies have scrambled to address the tragedy at The Rehabilitation Center. Scott ordered the Agency for Health Care Administration, which oversees nursing homes and assisted-living facilities, to stop the nursing home from taking on new residents in the immediate aftermath of the deaths, then AHCA halted Medicaid payments and finally pulled The Rehabilitation Center’s license entirely.
The nursing home has sued over all three of AHCA’s decisions.
Scott also issued an emergency order calling on nursing homes to have generators to power air conditioning and at least four days of fuel. The industry trade group, the Florida Health Care Association, has pushed back on that requirement, saying it’s impossible to meet the November deadline.
On Wednesday, Scott called on the Constitution Revision Commission, which meets every 20 years to propose new state constitutional amendments and is meeting this year, to address elder care. Scott said it must “find more permanent measures to put patient safety first as they propose changes to the Constitution. We must explore every possible avenue to keep elderly, frail and vulnerable Floridians safe.”
Two state senators, Republican Rene Garcia of Hialeah and Democrat Lauren Book of Plantation, have filed bills for the 2018 legislative session to require nursing homes to have generators that power air conditioning.