Administration on Aging's Report -PDF
Elder Affair's Response -PDF

The Federal Administration on Aging found Florida in violation of the Older Americans Act in a report released in early September that investigated allegations of interference in the Long-Term Care Ombudsman program.

Active in all 50 states, the Long-Term Care Ombudsman program was established to investigate complaints from residents in nursing homes and assisted living facilities (ALFs).  

The report has sparked bipartisan outrage in some state lawmakers. Sen. Eleanor Sobel, D-Hollywood, is calling for immediate legislative hearings into what the report has uncovered regarding interference and retaliation by the state Department of Elder Affairs against volunteers and staff in Florida’s Long-Term Care Ombudsman Program.

“I was appalled by it,” says Sobel. “The governor’s office has sent out memos stating that they are not to speak with the media, not to speak with the legislature.  And that definitely has a chilling effect on these volunteers who want to help people who are vulnerable living in ALFs or living in nursing homes.”

Sobel says she’s planning legislative hearings in the Senate Health Regulations committee, which she co-chairs to address the investigation’s findings.

 “This is a must do, and a must fix.  We have the largest population of seniors in our state compared to every other state in the United States and if the message goes out that we don’t have a model program for seniors in nursing homes and ALFs and people who are helping to make these facilities the best they could be then we’re going to have some big problems in the future.”

At a meeting of the governor’s Assisted Living Facility Task Force on Friday, Sen. Rhonda Storm, R-Valrico, requested independence of the state’s Long-Term Care Ombudsman Program.  Once completed, the Task Force will pass along its report to the governor, which could then be submitted to the state legislature for consideration.

The Administration on Aging’s report says the Florida Department of Elder Affairs violated the Older Americans Act a number of times.   It accuses the agency of controlling interactions between ombudsmen and the state legislature and preventing the ombudsman and volunteer advocates from speaking to the media.  The report also accuses Elder Affairs of improperly firing volunteers who investigate complaints from Floridians living in nursing homes and assisted living facilities.

For example, the report cites “grave concerns” over the April firing of former Venice volunteer Lynn Dos Santos, because of e-mails she sent to other volunteers.

The Department of Elder Affairs says Dos Santos’ actions violated Florida’s Sunshine Law. 

The federal Administration on Aging’s report questions Elder Affairs’ interpretation of the state’s open records law stating it would require ombudsman volunteers to provide advance public notice of their intent to have discussions with each other before talking about their work.

“Even if we’re discussing a case which is confidential, we’re allowed to discuss cases.  We’re allowed to talk things over amongst ourselves,” Dos Santos said.  “I didn’t break any rule.”

Dos Santos says she was thrilled with the report.  “At least the Feds see what Florida and the governor have done to the ombudsman program.  They have made it a sham of what it was.  People have resigned left and right.  They’ve been firing people.  It’s just been a nightmare.”

The day after the report came out, Clare Caldwell was fired from her position as the program’s Miami administrator.  She was never given a reason for her termination.

No one from the governor’s office or the Department of Elder Affairs would grant us an interview about the report, but in a written response to the Administration on Aging, Elder Affairs Secretary Charles Corley defends his firing of Dos Santos, as well as the forced resignation of State Ombudsman Brian Lee in February.  It was Lee’s termination that sparked the federal probe. 

The 31-page compliance review falls short of calling Lee’s dismissal a violation of the Older Americans Act, but it does not accept claims by Department of Elder Affairs staff that his removal was part of the normal turnover of a new governor.  Lee had served as ombudsman under both Gov. Charlie Crist and Gov. Jeb Bush and was described in the report by Department of Elder Affairs management as “‘the most dedicated public servant they had met.”  In his final year as state ombudsman, the program handled a record number of complaints to the satisfaction of residents served.

The report reveals that “DOEA (Department of Elder Affairs) has asserted that the State requested Mr. Lee’s resignation because of a desire by the EOG (Executive Office of the Governor) for the program to go in a ‘new direction.’” 

After Lee’s termination, the Ombudsmen program’s legal advocate, Aubrey Posey, took over the reins of the program as interim State Ombudsman.  Former Ombudsman volunteer Win Hoffman of Ft. Lauderdale says Posey quickly changed the tone of the program issuing “two gag orders” that volunteers were not to speak with legislators or the media.  The report says Posey testified in support of a house bill (HR1171) to limit volunteers’ ability to perform on-site facility inspections, which Lee had opposed.  The bill later died in the House Health and Human Services Committee.

Hoffman says he and other volunteers on the program’s executive committee went to Tallahassee to lobby legislators against the bill despite the gag order.  Hoffman was decertified as an ombudsman volunteer in June and like Clare Caldwell, he was never given a reason for his termination, but says he believes it’s because he talked to reporters. 

“My decertification came about clearly because I refused to subvert my rights under the first amendment to free and open communication with the media,” said Hoffman.  “As a volunteer and a public citizen, there can’t be any organization that deprives a citizen of their right to speaking to their legislator, to speak to the media.  And if that’s how the ombudsman program was beginning to be controlled by the Department of Elder Affairs, I guess I’m proud to have been decertified if those are the reasons.”

When she was interim state ombudsman, Posey also reversed a request Lee had made through the Patient Protection and Affordable Care Act for corporate ownership information of Florida’s 677 nursing homes.

 “Why can’t we know who owns these facilities?  Why is it a big secret?” asks Dos Santos. 

 In an interview this past spring with board member with the non-profit advocacy group Voices for Quality Care, Inc., Jerry Kasunic explained why ownership transparency is important.  

“What ends up happening in some of those cases, especially for those poor performing nursing homes is that there will be a corporation that’s been set up to shield the main body or owner from having any legal or advocacy actions actually presented to them,” said Kasunic.  “So a lawsuit will go to a shielded corporation that is pretty much broke.  And so there is no reward at the end of a lawsuit or there is no accountability at the end of a legal advocacy action.”

The Administration on Aging’s report details an incident with one of those poor performing facilities in describing the “information dissemination environment” faced by workers in the ombudsman program. The instance occurred in December of 2009 when the Ombudsman State Advisory Council voted to hold a press conference about an assisted living facility Dos Santos and Lee identified as the Munne Center in Miami. 

“Pretty much anything you can think of as far as complaints whether it’s food, being lack of food for residents, lack of staff, there was a rape that happened there by another resident,” said Lee.  And we had just on-going problems that had never been resolved. Working with the regulatory agencies being AHCA and the ombudsmen were fed up.”

Program staff wanted to announce their recommendation to revoke the Munne Center’s license.  The report says the Department of Elder Affairs secretary at that time forbade the press conference from going forward. 

The report states, “The reason given for the instruction to cancel the press conference was that going ahead would be embarrassing to the facility licensing agency. The press conference was cancelled.  Senior department of Elder Affairs managers have described the instruction to cancel as being ‘intimidating’ and that it would be reasonable for the long-term care ombudsman to have concluded that his job was on the line if the press conference went ahead.”

Department of Elder Affairs Secretary Charles Corley’s written response says the report’s telling of the event is “one-sided” and that the press conference was unnecessary as the Agency for Healthcare Administration, or AHCA, had already taken steps to bring the Munne Center into legal compliance.

But the Miami Herald reports an inspection earlier this year found ongoing problems including unsanitary bathrooms, failure to recognize patients suffering with life-threatening pressure sores, broken furniture and an inability of staff to keep track of residents among other complaints.

Lee says the situation has gotten worse under Gov. Scott’s administration. 

“The volunteers told me directly that they don’t want to talk to the media because they were afraid they would be fired like Lynn Dos Santos was fired,” said Lee.  “And this is a prevailing sentiment through the program.  So if you have volunteers who are afraid to talk to the media about issues that are important to residents then the program has been crippled and compromised.”

“Let’s call a spade a spade,” says Dos Santos.  “Gov. Scott was in the healthcare industry.  All these owner/operators are his friends. This was his chance to come in and get rid of, so he thought, the watchdog.  Well, obviously it’s not that easy.”

The report also says operating Florida’s Long-Term Care Ombudsman Program under the Department of Elder Affairs creates an organizational conflict of interest.  Elder Affairs creates licensing rules for assisted living facilities, but in Florida, also has the authority to fire an ombudsman.  The Older Americans Act contends that members of the ombudsmen staff need to be able to criticize those policies without fear of retaliation. Sobel says that’s also something she wants to fix.

 “We are not following federal law in the way our ombudsman program is designed,” said Sobel.  “It was designed to be like an independent auditor.  We need to look at the program and follow the Older Americans Act as to what the original intent was when this very good legislation came into being.”

Federal officials gave Florida’s Department of Elder Affairs until the end of September to submit a corrective plan of action to bring its policies and procedures into compliance with the Older Americans Act. 

Elder Affairs Secretary Charles Corley immediately requested an extension and has challenged the Administration on Aging’s interpretation of the Older Americans Act as well as the functions of the Long-Term Care Ombudsman Program.

The federal agency has not yet responded to Secretary Corley’s request.