Inspections decline as elder watchdogs are muzzled

Posted on Mon, Dec. 12, 2011

Inspections decline as elder watchdogs are muzzled

By Carol Marbin Miller

cmarbin@MiamiHerald.com

For five weeks, the leaders of Florida’s assisted-living watchdog group pondered what to do with volunteer advocate Bill Hearne.

The 74-year-old former businessman had been “a real asset” to the state’s Long-term Care Ombudsman Program, the group’s top lawyer wrote in an email.

But Hearne also had an annoying habit of telling reporters, public task forces and his colleagues that the advocacy group was “in bed with” industry leaders it was supposed to oversee.

One of Hearne’s bosses called his behavior “toxic.” In the end, the desire to shut Hearne up trumped his contributions to the program, and state Ombudsman Jim Crochet dismissed him last month.

Crochet attached a copy of the dismissal letter to his staff to a Nov. 29 email that contained only one sentence: “This should be in the Miami Herald soon.”

Hearne says his supervisors never warned him that his complaints had become intolerable, though emails between his bosses suggest he was aware he was likely to be dismissed. He added that even if he’s not officially working for the ombudsman’s office, “that will not deter me in advocating for the residents of [long-term care] facilities one iota.”

Hearne, who lives in Miami, is among a growing number of volunteer elder advocates who have either been dismissed or have resigned in the wake of an ongoing purge of inspectors who criticize or challenge the program’s decision to move in a dramatically new direction. The programs’ new philosophy has pleased ALF owners and lawmakers who support their interests.

But it has not been embraced by many volunteers, who say the program — inspired during the Great Society program of the 1960s — is becoming a lapdog, not a watchdog.

A series of emails among Ombudsman program leaders obtained by The Miami Herald show administrators struggling to stanch the mounting discontent among volunteers — even opting to dismiss productive volunteers with hope the dismissals will stop the criticism from spreading.

The turmoil began early this year. Brian Lee, the Ombudsman at the time, exploited a provision in the country’s new healthcare reform law and requested ownership and financial documents from the state’s 680 nursing homes. Lee was sacked shortly after and replaced with Jim Crochet, a long-time administrator for the state Department of Elder Affairs, the ombudsman program’s parent agency. Crochet had been recommended by an assisted living industry group.

Since Crochet’s appointment, the number of inspections and investigations by his office have decreased after years of steady growth.

In fact, annual inspections have declined for the first time to just 86 percent — from increasing to 9 out of every 10 facilities in 2007 to visiting every home in the state the next year. By 2009, volunteers were even able to inspect many homes twice.

Volunteers investigated fewer complaints, as well. Every year since 2007, the program has increased the number of complaints investigated by staff, beginning with 7,617 complaints in the 2007 budget year. But in an annual report released by the program Monday, complaint investigations declined from 9,098 in budget year 2010 to 7,534 this year — a 17 percent reduction.

Erica Wilson, a spokeswoman for the program, said administrators are not sure why both inspections and complaint investigations declined — though she speculated that the decrease in annual visits could prompt a reduction in complaints, as well, as complaints are often received during annual assessments.

“We understand the challenge in visiting Florida’s nearly 4,000 facilities to perform annual administrative assessments” each year, Wilson said. “Regardless, 86 percent of administrative assessments completed is not where we want to be and we have a corrective plan in place to work to complete 100 percent of administrative assessments for this coming year.”

Critics say the decline in activity results from the loss of key volunteers and staff, many of whom fled after Crochet introduced a new inspection form, which advocates say will make it much more difficult for them to detect abuse, neglect or squalid conditions. In the past, volunteers had free rein to nose around facilities, looking for such things as rodent and insect infestations, unsanitary bathrooms and kitchens, irregularities with medications, and unsafe conditions. Under the new form implemented by Crochet, volunteers have authority only to interview residents.

Many volunteers say the new approach is critically flawed: Many ALF and nursing-home residents lack the intellectual capacity to communicate with advocates. And some who are capable of speaking refuse to, because they are afraid of retaliation from facility staff. The Miami-Dade Grand Jury, which issued a blistering report on assisted living facilities last week, recommended that Crochet trash the new form and stick with the old policy that allowed volunteers greater freedom.

“Instead of conducting physical inspections of facilities and checking logs to ensure residents’ rights are not being violated, the local [volunteer] must now rely on the ability and willingness of residents to be forthcoming in their discussions with Ombudsmen,” the report said. “A failure of either aspect may result in the systematic continuation of violations of residents’ rights.”

In an interview in October, Crochet defended the new inspection form as being more “resident centered,” and dismissed criticism as coming from a small group of volunteers, mostly in Miami-Dade.

Hearne’s troubles began in late September, when he blasted the new assessment form during a meeting of the ombudsman program’s state council. In an email, the program’s South-Miami Dade manager, David Jenks, complained that Hearne had suggested the program “is no longer meaningful and is ‘in bed with’ the industry.” Jenks said another volunteer resigned following the meeting.

“I think we need to decertify him before he does more to damage morale,” Jenks wrote Oct. 5. “While he has been productive and served well in the past, his conduct is affecting other volunteers and encouraging them to be less productive.”

Later that day, the program’s top lawyer, Aubrey Posey, described Hearne as “a real asset to the council,” and suggested that dismissing him could have an unfortunate consequence. Hearne, she wrote, could “say we de-designated him for speaking his mind.”

Hearne continued to blast the new inspection program at a meeting of the South Miami-Dade ombudsman council in November. His comments, as well as remarks from several other volunteers who were unhappy with the new inspection process, appeared in an Oct. 23 article in The Herald. At that meeting another volunteer resigned, saying the new assessment tool would fail because most residents are too afraid of retaliation to speak to inspectors. “Even caregivers are afraid to speak to you,” the volunteer, Teresita Mestre, said. “We are not respected anymore.”

At another public meeting later that month, Hearne urged members of an ALF reform task force appointed by Gov. Rick Scott to recommend the new assessment form be dropped.

The hammer came down in November.

Deputy Ombudsman Don Hering, a retired U.S. Marine colonel, suggested the program “cut our losses” with Hearne in a Nov. 18 email. “He either is not capable of change and cooperation or does not want to,” Hering wrote. “The true indicator of Bill’s problem to me is his open defiance of leadership and disrespect for the chain of command.”

In a reference to volunteer Joel Beyer, who had also been quoted in The Herald, Hering suggested that, by dismissing Hearne, “Joel and others will realize their roles and get on with business.”

The purge may not have that effect.

In a Dec. 8 email to The Herald, Beyer said “there has been no more dedicated or devoted advocate for the elderly residents of assisted living facilities and nursing homes than” Hearne, and decried Hearne’s “silencing” as a blow to “a conscience for this once-valuable program.”

“It is the elderly residents of the facilities that the ombudsman program was designed to protect that will suffer as a result of Bill’s decertification and other outspoken Ombudsmen are certain to share his fate,” Beyer said. “For shame.”

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