From the Orlando Sentinel
By Kate Santich,
Watchdogs of the nation's nursing-home industry are calling for an investigation into Gov. Rick Scott's abrupt dismissal of the state's long-term-care ombudsman, claiming that the governor's "interference" was illegal.
For two weeks, advocates for patients' rights have waged a campaign to persuade officials of the U.S. Department of Health and Human Services and the federal Administration on Aging to look into the Feb. 7 ouster of Florida ombudsman Brian Lee.
Lee, who had held the post for seven years, previously worked under Govs. Jeb Bush and Charlie Crist and was considered an aggressive champion of residents' rights. In recent months, though, he'd had an increasingly contentious relationship with the industry and said he was ultimately told that the governor had ordered him to resign or be fired. He chose to resign.
"This is really a disaster for the residents of Florida nursing homes," said Kate Ricks, chair of Voices for Quality Care, a Maryland-based nonprofit that supports patients' rights and is one of the groups calling for a federal investigation. "There are problems in nursing homes and assisted-living facilities across the country, and there are very few resources to help — but the ombudsman is one. The ombudsman's only job is to be an advocate for those residents. He has to be independent."
The governor's staff did not respond to several requests for comment, nor has the governor spoken publicly on the subject to other media.
Under the federal Older Americans Act, first passed in 1965, each state must have a long-term-care ombudsman program separate from the agency that licenses the facilities. In Florida, Lee, a $78,000-a-year state employee, led a largely volunteer army of about 400 ombudsmen throughout the state. Their job, according to federal law, is to identify, investigate and resolve residents' complaints.
State law mirrors national legislation in expressly mandating that the ombudsmen are to operate "without interference by any executive agency."
Further, the laws "prohibit retaliation and reprisals." The goal, advocates say, is to ensure the residents have someone free of influence to address their complaints — which in Florida last year numbered nearly 10,000, a record.
The ombudsman's office does not have the power to fine the facilities, although it can refer the matter to other agencies that do have such powers. Mostly, it tries to resolve the matter to the residents' satisfaction. Still, the ombudsmen's influence can be considerable.
"The nursing home wouldn't even return our calls until we got the ombudsman involved," said Karen Mummey of St. Cloud, whose 71-year-old mother fell and broke her hip in a nursing home after being left unattended in a bathroom. Mummey said the facility's staff also failed to awaken her mother for meals and were often too busy "texting on their phones" to do their jobs.
"But when the ombudsman comes in there, they all stand up and pay attention," Mummey said. "It's the only advocate we have."
For his part, Lee admits he had a "rocky relationship" with the state's nursing-home industry for years. But he said things took a marked turn for the worse when Scott — former CEO of the Columbia/HCA hospital chain — was elected.
"It was like, 'Oh, man, Scott is our guy — and now we'll be able to get him [Lee] out of there," Lee said. "When the governor's transition team came to our department, half the group was made up of nursing-home providers. So right there, in December, we knew where this was going."
Late that month, the Florida Assisted Living Association, which represents about 700 of the state's assisted-living facilities, sent the governor a letter supporting the appointment of a new ombudsman. Their suggestion was Robert Emling, a Miami field-office manager for the state's Agency for Health Care Administration.
Lee calls that "complete interference with the program" — an assertion echoed by other advocates. But the Assisted Living Association's executive director, Patricia Lange, said the group never called for Lee's ouster. The letter itself makes no mention of Lee.
"That's not a position we could take," Lange said. "We had actually been contacted by this individual — Mr. Emling — who told us he was interested in the position. We met with him, and we simply supported his effort to apply for the job."
The letter arrived in the Governor's Office on Jan. 18, shortly before Lee sent requests to the state's 677 nursing homes for corporate-ownership information — something he was required to do under the new Affordable Care Act, but which nonetheless rankled industry leaders.
Some say that was the final straw.
"It shouldn't have been a problem," Lee said, "except that the industry doesn't want that information out there. They're really crafty. What they do is separate out all their corporate information and have these individual little limited-liability companies that hold all their interests."
If a facility is sued, Lee said, it is not only protected by state caps on liability, but it also is able to close down the targeted company and continue business under the name of another
Our state government has left unprotected our most vulnerable citizens: our grandmothers and grandfathers," said John Morgan, founder of the sprawling personal-injury law firm Morgan and Morgan. "We've let them set up these shell corporations and then set limits on how much you can collect."
Advocates had worked behind the scenes for years to change the federal law, ultimately succeeding with the Nursing Home Transparency Provision in the nation's health-care overhaul. The new law requires nursing homes to provide the information to state ombudsmen — although Florida has challenged the law in federal court, and officials here have said the state does not need to comply with the federal law while the case makes its way through the appellate process.
In Ricks' opinion, the timing of Lee's dismissal — on the heels of his request for ownership information — is "scary." Joe Rodrigues, president of the National Association of State Long-Term Care Ombudsman Programs, said it is "suspicious."
"It's a concern to our association first of all because of the letter from Assisted Living Association to the governor suggesting that the governor replace Brian with this other individual, and, second, because it came immediately after the request Brian made for ownership information," said Rodrigues, who heads California's ombudsman program. "The ombudsman shouldn't fear he'll lose his job if he speaks out or challenges someone, whether it's the licensing agency or the facilities or anyone else."
But Florida's nursing-home industry, represented by the Florida Health Care Association, claims Lee's request was both "onerous" for the one-month deadline he imposed and because it "failed to focus on residents' rights."
Kristen Knapp, the association's director of communications, said the ombudsman program under Lee had often strayed off target and that some volunteers had used their state-mandated yearly assessment of the facilities to become de-facto health inspectors.
"Some folks would even come in and look at the kitchen and question an administrator on the backup food supply in the event of an emergency," Knapp said. "And why is that [ownership] information even necessary? When you have to pull people back to do paperwork, it takes them away from the [residents'] bedside."
Rodrigues countered that anything that concerns an ombudsman should concern the facility, too.
"If I was a facility administrator," he said, "I'd want to hear this from an ombudsman rather than a licensing agency that's going to fine me or an attorney who's going to sue me."
Lee had recently begun to use Twitter to report his findings during nursing-home visits, posting residents' complaints and his observations as he went. An October visit to an Orlando nursing home was especially embarrassing to the facility.
Meanwhile, the Administration on Aging, the most likely agency to investigate, has not yet announced its intentions. But Public Affairs Officer Moya Thompson said the advocates' letters are being reviewed.
Lee and Rodrigues said they had been given verbal assurances that the agency would investigate.
The state ombudsman's office has yet to advertise for Lee's replacement, but acting Director Aubrey Posey — formerly the program's attorney — said the office is continuing to do its job.
The request for nursing-home-ownership information, though, has been rescinded.
Lynn Dos Santos, volunteer chairwoman of the State Long Term Care Ombudsman Council, sees it as the potential beginning of the end. If the ombudsman program loses autonomy in Florida, she said, the nursing-home industry will be emboldened to apply pressure in other states, too.
"I've seen a wonderful leader taken away from us," she said. "He lived and breathed that job, and I can't imagine the program without him. As far as I'm concerned, we need to draw a line in the sand."
ksantich@tribune.com or 407-420-5503
http://www.orlandosentinel.com/health/os-state-ombudsman-firing-20110226,0,6912440.story?page=2
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