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Neutering the watchdogs 

Interference in state's Long-Term Care Ombudsman Program could mean less oversight of nursing homes and assisted-living facilities

It’s been nine months since Brian Lee was given an ultimatum by his superiors at the state Department of Elder Affairs: Either turn in his resignation as the state’s Long-Term Care Ombudsman, in charge of advocating for residents of assisted-living facilities and nursing homes across the state, or be fired.

Lee, who was often perceived during his seven years on the job as a thorn in the side of the industry administrators he was paid to be critical of, reluctantly resigned. Less than three months later, Jim Crochet, a veteran employee of the state’s Department of Elder Affairs, under which the Long-Term Care Ombudsman program operates, was named as Lee’s replacement.

If the state thought that it had closed the chapter on Lee’s activism on behalf of the residents in the state’s 4,039 long-term care facilities, it was wrong. If anything, Lee is more outspoken and critical than ever because he doesn’t have to abide by the state rules that used to keep him from speaking directly to the media when he was the Long-Term Care Ombudsman.

Lee is now executive director of a Tallahassee-based nonprofit citizen advocacy group called Families for Better Care, which tries to raise awareness about poor conditions in nursing homes and assisted-living facilities across the nation, and part of his role is to stay on top of situations – such as the one playing out in Florida right now – in which politicians sympathetic to the health care industry are eroding the protections in place to ensure that residents aren’t neglected, abused or treated unfairly.

So on Friday, when state Rep. Matt Hudson (R-Naples), told a crowd of ombudsmen who’d gathered in Altamonte Springs for a meeting of the state’s Long-Term Care Ombudsman Council that he introduced a bill during the 2010 legislative session that would have limited the purview of ombudsmen to investigate conditions in facilities, that he’d done so for “shock value” and to initiate a conversation about the role of ombudsmen, Lee wasn’t shy about voicing his response.

“You want to start a conversation and initiate shock value at the harm and expense of residents of nursing homes and assisted-living facilities? To me, that in itself is shocking,” says Lee, who attended the meeting. “Right now, the ombudsman’s office is being systematically dismantled from the inside out.”

Per the federal Older Americans Act, which mandated that each state establish a long-term care ombudsman program to investigate and resolve concerns about the quality of care offered in nursing homes and assisted-living facilities, ombudsman programs are supposed to operate independently and impartially, without political interference, intimidation or meddling. Lee says that over the past five years, the long-term care industry in Florida – which contributes heavily to both Democratic and Republican political causes – has attempted to interfere with the ombudsman program’s reach. But it wasn’t until 2010, when it looked like Rick Scott – a former health care executive with a business-friendly, deregulation-minded platform – was making headway in his campaign for governor of Florida, that the effort to put a wedge between nursing home residents and the ombudsmen picked up. In December 2010, the Florida Assisted Living Association, the state’s largest association representing nursing homes and assisted-living facilities, wrote newly elected Gov. Scott a letter recommending that it replace Lee with a candidate it favored; less than two months later, Scott’s office contacted the Department of Elder Affairs and said that it was time for Lee “to go” because it wanted the ombudsman program to “go in a new direction.” That same day, Lee was told to quit or be fired. Long time ombudsman volunteers voiced concerns about the manner in which Lee was let go and sent a letter to the U.S. Administration on Aging asking it to investigate “acts of retaliation and willful interference” with the program. Shortly thereafter, some volunteers close to Lee, including Lynn Dos Santos of Venice, Fla., were let go. Other volunteers have quit the program in frustration – there used to be approximately 400 volunteer ombudsmen in the state; now there are only about 250.

After Lee left his post, the Administration on Aging said it received “multiple requests for investigation of the actions of the state of Florida, alleging improper interference with the direction of the Florida Long-Term Care Ombudsman Program,” so it performed a compliance review of the program; in a report released in September, it determined, among other things, that the state had, in fact, improperly meddled in the ombudsman program by failing to allow the ombudsman’s program to select or terminate its own volunteers (all volunteers serve at the pleasure of the Department of Elder Affairs) and by implementing rules that forbid representatives from the ombudsman’s office from talking to the media or legislators to advocate on behalf of residents. Further, the report noted “areas of concern” about how the state appointed and removed Lee.

“The state of Florida, as openly asserted by Department of Elder Affairs leadership, does not support the spirit of the Older Americans Act and that the Long-Term Care Ombudsman has the independence to take positions representing the interests of long-term care facility residents which may be contrary to positions of the Department of Elder Affairs, sister agencies or the governor,” the report concludes. “As a result, the Long-Term Care Ombudsman Program has been severely limited in its ability to carry out its mission under the Older Americans Act to advocate for residents and their interests.”

Charles Corley, secretary of the state Department of Elder Affairs, responded to the report with a detailed eight-page defense of the state’s actions in its handling of the ombudsman program and insisted that the federal agency provide it with additional documentation and clarification before it would issue a “corrective action plan” to address the perceived problems with the program.

Lee says that despite the fact that Friday’s meeting was the first time the ombudsman’s council had met since the Administration on Aging’s report was released, it was hardly discussed at the meeting; many ombudsmen, he says, had not even seen it. “So we brought copies of it,” he says. “One thing we want to know is that there’s at least one watchdog out there that is outside of any kind of agency or facility that acts as a voice for our parents and grandparents and be their advocate without interference. If we don’t have that on a local level, then resident care is going to be compromised.”

But according to Rep. Hudson, who introduced legislation during the 2010 legislative session that would have eliminated the ability of ombudsmen to perform assessments of nursing home facilities, until recently, the ombudsman program had begun to overstep its bounds. His bill – introduced, as he told ombudsmen who attended the meeting last week, for “shock value” – was intended to give the program a reality check.

“My feeling is that the ombudsman program is to be an advocate,” he says. “They do have a role to provide some assessments to follow up on complaints in the course of their advocacy work. But in many cases what was transpiring is that many of our ombudsmen who were volunteers were acting in the role of AHCA [Agency for Health Care Administration] regulators.”

AHCA is the state regulatory agency in charge of making sure that long-term care facilities meet certain minimum health and safety standards; ombudsmen, Hudson says, were at times treading on AHCA’s territory in their regular assessments.

“That’s not the role they were designed for,” he says. “In some cases they were expanding the role, so I suggested that we should eliminate their assessment function which would by default take away some of their ability to act as regulators.”

Hudson’s bill didn’t pass, but it did have the intended shock value – he’s found that the ombudsman’s program seems to have refocused its efforts on resident complaints within its purview. He disagrees with those who think his bill was an attack on the ombudsman program.

“It looks like things are coming together and there’s no need for me to file the bill again next year,” Hudson says. “If somebody thinks that’s an assault, I’m not sure how.”

Dos Santos, who was terminated as a volunteer by the Department of Elder Affairs in April for allegedly violating provisions of Florida’s Sunshine Law by emailing other ombudsmen about “business that arguably would be discussed during a [public] council meeting,” according to the letter she received informing her of her termination, was floored to hear Hudson suggest that ombudsmen were overstepping their bounds, considering the fact that volunteer ombudsmen have no authority to fine or regulate anyone – all they can do, she says, is try to negotiate with administrators on behalf of residents or bring serious concerns to the attention of the Department of Elder Affairs or Adult Protective Services. Even when that happens, she says, their concerns are not always resolved. Further curbing ombudsmen, she fears, will mean it’s even less likely that routine but serious problems regarding cleanliness, safety or medical concerns could go undetected.

“Contrary to whatever you’ve been told, we were always resident-focused,” she told her former colleagues during last week’s meeting. “However, we knew that to truly serve residents, we had to do more than sit and play checkers with the residents, which is what your jobs have been reduced to.”

In her comments at the meeting, Dos Santos also addressed her concern that the lack of morale and support for the program has resulted in a dwindling number of ombudsmen, which makes it even harder for those who are left to do an adequate job tending to complaints and concerns.

“Right now, many of your fellow ombudsmen have resigned and more will be leaving soon,” she said. “You are working for the industry, and they are not paying you a dime.”

Locally, the lack of volunteers has been having an impact on how well the ombudsman’s office can do its job. According to Lashea Heidelberg, district ombudsman manager for the East Central Region, which currently includes Orange, Osceola, Seminole and Brevard counties, her office used to tend to approximately 60 resident complaints per month; now it only receives about 20 to 30 per month, and she says she doesn’t think that’s because there are fewer things to complain about – just fewer people to complain to. The East Central office used to have about 40 volunteers, but at the most recent count, the number has dwindled to 18.

“I have fewer people to cover the ground,” she says. “Sometimes with elderly people, they may forget that they have us to call. If we don’t have a real presence, it really shows in the numbers. … We just don’t have enough people. And the numbers have dropped statewide.”

Heidelberg stops short of saying what she thinks causes people to drop out of the program, but she says she does sense some frustration among the volunteers that remain, partly due to concerns that their ability to properly advocate for residents in nursing homes and assisted-living facilities may be diminished – whether due to politics or simply decreasing numbers of people willing to do the work.

“Without the volunteers we don’t really have much of a program,” she says. “They are the ones who are in the trenches daily.”

When asked how the recent negative attention the program has received from the media and politicians has impacted morale, she says she thinks it has really concerned some active volunteers.

“It can be difficult to reassure them that we’re still here for the residents,” she says. “It can be a little discouraging at times.”

Correction: The original version of this story contained inaccurate data about the number of residents in long-term care facilities in the state of Florida. According to the state Department of Elder Affairs, there are 168,193 beds in the 4,039 long-term care facilities operating in Florida. Orlando Weekly regrets the error.

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