The Miami Herald

Program to protect elders undermined, feds say

A statewide volunteer advocacy program for nursing home and assisted living residents has been crippled by conflicts of interest and political meddling by the governor’s office and state elder affairs administrators, a federal report says.

The U.S. Administration on Aging, which investigated the alleged political firing of an outspoken head of the state’s Long-term Care Ombudsman Program, charged in a strongly worded, 31-page report Thursday that the volunteer group has become so hamstrung by politics that volunteers can not effectively advocate for frail elderly and disabled people who cannot protect themselves.

Release of the report comes at a critical time: On Friday, the day after its release, the state Department of Elder Affairs, which houses the ombudsman program, fired its Miami administrator, Clare Caldwell, whose most recent evaluation, in June, described her as “an invaluable employee who is committed to promoting the best care and quality of life for residents.” Caldwell said her bosses refused to tell her why she was fired, except to say that she served “at the will of the [agency] secretary,’’ and her services were no longer desired.

“I don’t understand how this can happen,” Caldwell told The Miami Herald Friday morning. “I don’t have any idea why I’m being fired.”

“I’ve always thought that my allegiance is to the public,” Caldwell said, adding: “That’s not what they want.”

The office of Gov. Rick Scott refused on Friday to discuss Caldwell’s firing, or the report, which tied interference in the program directly to the administration.

A spokeswoman for the Department of Elder Affairs, Ashley Marshall, also declined to discuss the report, though she did release the agency’s eight-page response to federal aging administrators.

“Florida’s Ombudsman Program exists to benefit and protect the residents of long-term care facilities, who are among the most frail and vulnerable populations in the…delivery system. The Department understands and respects the vital needs for an independent [ombudsman] to advocate on behalf of residents without the pressures of external influences,” wrote Charles T. Corley, the agency’s secretary.

As to Caldwell’s termination Friday, Marshall told The Herald in an email: “It is not within standard departmental protocol for me to comment on personnel matters.”

Brian Lee, the former ombudsman at the center of the controversy, called the report “the first step toward vindication of the ombudsman program. This is a step in the right direction toward ensuring the program is an independent voice for residents,” he said.

From the beginning, the report said, Florida’s ombudsman program was beset by a conflict of interest: The Department of Elder Affairs develops licensing rules for all assisted living facilities, or ALFs. But the department also holds the authority to appoint or terminate ombudsmen who are supposed to have the authority to criticize such rules. Florida, the report said, “has created an organizational conflict of interest.”

Elder affairs administrators, the report said, openly admitted they do “not support the spirit” of federal rules that guarantee the independence of elder advocates and allow volunteers to take positions “which may be contrary to the positions’’ of the elder affairs department or other “sister agencies of the governor.’’

“As a result, the Long-term Care Ombudsman Program has been severely limited in its ability to carry out its mission…to advocate for residents and their interests,” the report added.

The federal report suggests the volunteer advocacy group has long been under the thumb of Florida governors’ administrations, which went so far as to forbid advocates from speaking publicly without clearing their messages in advance. The federal government says that policy violates the U.S. Older Americans Act, which governs long-term care ombudsmen.

In December 2009, for example, the program’s state advisory council voted to call a news conference to push for improvements at an assisted living facility — sources have told The Miami Herald the incident involved Miami’s Munne Center — after behind-the-scenes efforts had fallen short. The volunteer, retired U.S. Marine Corps. Col. Donald Hering, canceled the conference abruptly after his supervisors “insisted that it was not to go ahead under any circumstances,” the report said. “The reason given for the instruction to cancel the news conference was that going ahead would embarrass’’ the state Agency for Health Care Administration, or AHCA, which licenses and regulates ALFs and nursing homes and had repeatedly failed to act on Munne.

Hering, who was recently promoted to deputy state ombudsman, concluded “that his job was on the line if the press conference went ahead,” the report said.

In his reply to the report, Corley called a description of the event “one-sided.” The conference, Corley added, was “needless’’ because the ombudsman program “was able to engender a collaborative effort between AHCA, the [elder affairs] department and the facility to resolve identified issues to the satisfaction of all parties.”

But in April 2011, two years later, AHCA halted all new admissions to Munne, sought a permanent revocation of the home’s license — and imposed a $1,172.59 fine — following a scathing 63-page inspection report that turned up a wave of ongoing violations: poor training of key employees; a failure to hospitalize residents with life-threatening pressure sores; searing temperatures inside the building; foul odors, filthy bathrooms, stained floors and broken furniture; and the home’s habitual inability to keep track of its own residents.

One resident, for example, roamed from the ALF six times in six months. A resident, diagnosed with schizophrenia, was found lying in a ditch surrounded by ant hills. He had been bitten so many times by the insects that police had to take him to the hospital, the report said.

But the administration of Gov. Scott, the report says, has gone much further:

On Jan. 28, shortly after Scott’s inauguration, the ombudsman program’s director, Brian Lee — described in the report by colleagues as “the most dedicated public servant they had met” — was fired. Lee’s dismissal came shortly after he sent nursing homes a letter requesting ownership and financial information to which, under the new federal health care reform legislation, he was entitled.

Then, on Feb. 7, the report said, the governor’s office told elder affairs administrators “that it was time for Mr. Lee ‘to go.’ ” The program needed to “go in a new direction.” Days later, elder affairs “leadership’’ told the acting head of the ombudsman program that Lee’s letter to nursing homes needed to be “fixed,” the report added.

Though the Administration on Aging acknowledged in its report that the appointment and removal of ombudsmen was well within the administration’s authority, the report said the state could not remove ombudsmen in order to achieve political aims. “The departure of the incumbent [ombudsman] caps off a history which the Department of Elder Affairs openly acknowledges has not allowed [the program] to be independent and impartial,” the report added.

“Mr. Lee’s departure has been a grave blow to a program that was already severely limited in its advocacy.”

In his letter to federal authorities, Corley noted that “willful interference” with ombudsmen is a crime, though under the statute’s “plain meaning,” administrators are well within their rights in “voicing displeasure and criticism regarding how the ombudsman is performing his or her job.”

“If [Lee’s] argument that willful interference by any person includes criticism on how he or she conducts his or her duties is taken to its logical conclusion, then the department secretary would not be able to exercise his authority to remove the ombudsman…without committing a crime. The Legislative mandate that the ombudsman serves at the pleasure of the department secretary is completely illusory if the secretary is subject to criminal prosecution for merely disagreeing with how the ombudsman is performing the job.”

Two months after Lee was fired, a local volunteer who was calling for an investigation into his firing was herself terminated. Elder affairs administrators say she was fired for sending emails to other volunteers in violation of the state’s public records law — though Lee says the emails also were sent to several reporters.

The federal report noted her departure with “grave concern,” saying such an interpretation of Florida’s Sunshine Law would deal a crippling blow to volunteers’ ability to speak with each other.

After Lee’s departure, the elder affair’s department appointed a new ombudsman who came with the support of an important group: the assisted living industry.

In December, before Scott took office, the director of the Florida Assisted Living Association sent the governor-elect a letter recommending an AHCA inspector for Lee’s job, praising the man, Robert Emling, for “proactively opening lines of communication…with the provider community and state and local agencies.” Emling withdrew his name from consideration, and association director Pat Lange then recommended Jim Crochet, who was given the job.

“We were impressed with Jim’s expertise, and we felt he would bring a lot to the position,” Lange told The Herald.

Crochet did not respond to calls for comment.




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