Task force to seek reform of assisted living facility industry

The following article was published in the Miami Herald on August 7, 2011:

Task force to seek reform of ALF industry

By Carol Marbin Miller, Michael Sallah, and Rob Barry

Calling Florida’s lax oversight of assisted living facilities “deadly,” one of the state’s top lawmakers for social issues vowed this summer to pass sweeping reforms of an industry that has sometimes left frail elders and disabled people in filth and peril.

But as a state task force prepares to meet for the first time Monday to develop a blueprint for reform, some advocates for the elderly have suggested the effort may be derailed before it ever begins by a familiar foe: the power of industry groups and their ties to lawmakers and regulators.

“Reaching out to the industry and regulators alone is what put our state in the assisted living mess it is in today,” Brian Lee, a former state long-term-care ombudsman and current head of a Tallahassee-based advocacy group, wrote in a recent letter to a top state lawmaker. “It is due time for this industry to become more transparent and wholly accountable.”

Gov. Rick Scott’s Assisted Living Workgroup, which includes 14 appointees from the industry, the state Legislature and advocacy groups, will meet Monday from 1 p.m. until 4 p.m. And beginning in the fall, a panel of state senators will begin drafting broad new legislation, including proposals to ramp up inspections of ALFs, to beef up the requirements for administrators and to increase penalties for facilities that fall short.

The twin efforts followed a three-part series in The Miami Herald that showed state regulators repeatedly caught homes breaking the law — including sometimes deadly abuse and neglect of frail elders — but failed to shut down or even seriously punish the worst offenders. The newspaper found that administrators with the state Agency for Health Care Administration could have shut down 70 homes in 2008 and 2009 for such violations as abuse and neglect leading to death, but closed just seven homes.

In the days after the series ran, two state lawmakers — Republican Ronda Storms of Valrico, who chairs the Senate’s Children, Families and Elder Affairs Committee, and Democrat Nan Rich of Weston, who serves on the committee — vowed to seek meaningful reforms of the industry as part of a summer-long interim project in their Senate committee. “It’s offensive to basic human dignity and care for vulnerable populations,” Storms told The Herald. “There’s no question.”

But before Storms could hold a single hearing, Senate President Mike Haridopolos assigned the project instead to Republican Sen. Rene Garcia of Hialeah, a healthcare consultant with deep ties to the industry. His Senate district contains one of the largest concentrations of ALFs in the state, including several with woeful regulatory histories.

In a July 14 letter to Haridopolos, Lee requested that the legislative inquiry be spearheaded by Storms, whom he said has a long history of siding with consumers, not the industry, when supporting ALF legislation. Haridopolos could not be reached for comment.

Referring to Garcia’s appointment, Lee wrote: “This action is quite troubling from a consumer’s vantage [point] as Mr. Garcia works in the very industry he is charged to oversee, and last year proposed controversial legislation aimed at watering down residents’ rights and decreasing regulatory oversight of assisted living facilities.’’

“Stop this shady maneuvering and depoliticize this process by ensuring residents, families and consumers are at the table for any future discussions,” Lee added. “Put the reins of this effort in the hands of Senators Storms and Rich so there is equitable representation for all stakeholders.”

From the start, Storms had warned that reform efforts would fall short if not led by “honest brokers.”

Storms and Rich have not abandoned their efforts to influence the course of legislative reform. Storms has formally asked Haridopolos to merge her committee with Garcia’s Health Regulation Committee to form a “select’’ panel to investigate ALF oversight. Rich said she is confident the two women will have a meaningful role in developing new legislation. Though Rich and Storms belong to rival parties, they long have collaborated on legislation designed to help children, elders and disabled people.

“I really believe the two committees can work well together to achieve the changes we need to ensure the safety of people living in ALFs,” Rich said.

Garcia has insisted he has only one agenda: “to develop new solutions and set new standards for ALFs in Florida.”

“Reports of resident neglect, poor conditions and misuse of funds cannot be ignored,” Garcia wrote in a statement. “These senior citizens and people with disabilities are counting on us to help make things right. We must ensure they receive the quality of life they deserve and that they can depend on their caregivers.”

Lee, who was removed from his post as the state’s top elder ombudsman in February after he requested financial records from Florida nursing homes, was no more encouraged by the composition of the governor’s work group, which he suggested had been stacked by Scott “with individuals who have favorable ties to the industry as lobbyists, providers or consultants.”

Among the appointees to the panel are representatives of three industry groups — the Florida Assisted Living Association, the Florida Health Care Association and the Florida Association of Homes and Services for the Aging — and four ALFs. Also on the panel are two lawmakers — Storms and state Rep. Matt Hudson, a Naples Republican — Long Term Care Ombudsman Jim Crochet; Martha Lenderman, an expert on Florida’s involuntary commitment Baker Act law; Bob Sharpe, who heads the Florida Council for Community Mental Health, and Ken Plante, a lawyer who heads the Florida Bar’s Elder Law Section.

The meetings will be chaired by Larry Polivka, an expert on aging issues and scholar in residence at Florida State University’s Claude Pepper Foundation.

Hudson, the Naples Republican appointed to the work group, offers no apologies for his legislative work on behalf of the ALF industry. In the spring, Hudson co-sponsored a bill to strip the state ombudsman program of the power to perform detailed ALF inspections, arguing such visits largely duplicated the survey process already performed by the Agency for Health Care Administration, AHCA.

“I am a strong proponent of less government regulation,” Hudson said. “I understand there are issues that occur at some of our facilities, but there are issues that occur at every business in this state.”

Pat Lange, who heads the state’s largest ALF industry group, the Florida Assisted Living Association, also contends there is no need for further regulation. “We feel like the regulations that exist now are adequate,” Lange said. “We think the problem has been with enforcement and oversight.”

Turning a blind eye to operators who harm residents, Lange said, erodes faith in the industry, and can lead to greater problems over time. “For the industry to remain viable, we need to have consistent and proper enforcement across the board from AHCA, and those facilities that are consistently bad actors should be sanctioned, or they should be closed.”

Polivka said he intends for the panel to focus mainly on proposals that would improve the lives of the elderly and special-needs ALF residents.

“I’m trying to look at this from that individual’s eyes as much as possible,” Polivka said.

But he added that lawmakers and regulators cannot be “totally indifferent to the financial needs of people operating these facilities. There is no sense in having a regulatory framework that is so extreme that it cannot be afforded, especially by people who are on public support.”

Polivka acknowledged that the work group might be over-represented by friends of the industry, but insisted the tilt would not lead to proposals that favored owners over residents.

“We’ve got a lot of people from the industry,” he said. “But I also think there are very key players who will more than hold their own.”