Do Long-Term Care Patients Need a Stronger Advocate?

by David Gorn, California Healthline Sacramento Bureau

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Sylvia Taylor-Stein runs a local ombudsman program in Ventura County, and she is frustrated.

The state's Long-Term Care Ombudsman program is a network of local programs that use trained volunteers to investigate complaints and concerns in long-term care facilities and to make sure patients in those settings are treated properly.

Taylor-Stein loves her work but says the state isn't doing its part.

"It's a gift to me to represent people who can't represent themselves," Taylor-Stein said. "When people get older, they are often ignored, they're put away -- and once you're in a nursing home, you don't have a voice. That's why the local ombudsman program is so important, it's important that they have a voice. And we need that voice at the state level, too."

The issue, according to Taylor-Stein, is that the state ombudsman's office hasn't acted as an independent advocate for elders, but instead works in lock step with the governor, as management of the agency is a governor-appointed position.

She said, "So, for instance, there was a bill [AB 2555 introduced in 2010 by Assembly members Mike Feuer (D-Los Angeles) and Dave Jones (D-Sacramento)] that would've restored some of the funding for the ombudsman program. The [Department of Public Health] took an oppose position, and [the head of the ombudsman program] said he couldn't do it because he was a state appointee, and the state DPH took an oppose position."

There have been a number of these instances, Taylor-Stein said, and that lack of independence runs counter to federal rules concerning ombudsman programs. "There has been a lot of interference," Taylor-Stein said. "That's what we're trying to undo, that interference, to make the state ombudsman be the advocate federal law says they're supposed to be."

The national Ombudsman Program, started in 1972 as a Public Health Service demonstration project in response to widespread complaints about nursing homes, is now under HHS’ Administration on Aging. The program was strengthened in 1978 when Congress amended the Older Americans Act to include a requirement that each state develop a Long-Term Care Ombudsman Program. The national framework has been strengthened several times over the past three decades with new requirements.

A bill (SB 345) by Sen. Lois Wolk (D-Davis) aims to bolster the independence and power of California's politically-appointed ombudsman in part by aligning federal and state regulations. Her bill also calls for the ombudsman’s office to beef up its online advocacy and information as well as report on its advocacy programs and the outcomes of those programs.

The bill easily passed the Senate floor and is now making its way through the Assembly.

'We Don't Have the Resources'

The chief opposition to the effort to strengthen the California ombudsman's office is the state ombudsman himself.

State Ombudsman Joseph Rodrigues said his main concern is that the legislation could add tasks and responsibilities to his office without commensurate funding.

"Many of the things in this bill are good practices, but they may be duplicative of some of the things we already do," Rodrigues said. "We do file an annual report already, for instance. And I'm not sure about the advocacy plan, about how that would align with the report we already submit."

Rodrigues said his office has no trouble speaking out on behalf of long-term care patients, so getting legislative instruction to advocate for elders wouldn't really change anything, he said.

"I'm not sure it really makes the ombudsman's office more independent," Rodrigues said, "which is what I think is the intent of this bill."

Wolk begs to differ. The bill's author said she's backed up by two extensive studies of the ombudsman's office -- including a recent investigation by the Senate Office of Research -- and a growing number of local ombudsman programs.

"There's a great deal of dissatisfaction with the ombudsman's office," Wolk said, "and a surprising number of reports and studies about this in great detail, that found there is a problem."

Wolk said that, in the political cacophony of voices jockeying for state funding, the silence from the ombudsman's office has hurt elders in California.

"They have not advocated," she said. "They've been reluctant, if not absent, on most of the bill activity. I think we ought to follow federal law here, and we want to see more efficiency in that office. They need to do the job they're supposed to do, and this is our chance to strengthen the office."

What's Next?

It could be a bumpy political road to strengthen an office that doesn't want to be strengthened. Wolk recently met with Rodrigues and the governor's staff to broach the issue and get a little consensus.

"It has taken awhile to get a response," Wolk said. "But I do look forward to [the ombudsman's office] embracing some of this."

Wolk and other advocates made it clear that this issue is not personal, it's policy. They see a problem with the way the system is structured.

"None of us have a personal issue with Joe Rodrigues, we like him," Taylor-Stein said. "But this whole thing, it's about having a voice at the state level. When you have silence at the state level, it's noticeable."

Rodrigues said it in a similar way. "In my mind, it's not a matter of us and them," he said. "The local [ombudsman program] representatives are representatives of the state office. We're not talking about the state [versus] 35 local offices, we're talking about those local offices making up the state program."

But what advocates don't understand, he said, is that the department is completely strapped for cash -- and that creating new work requirements could pull resources away from existing work.

"We've lost two out of the five analysts out of the office here," Rodrigues said, "and we still do the same amount of work. This [resources crunch] has hampered our ability to take on additional responsibilities and assignments."

That's the basis of his resistance, Rodrigues said. He doesn't like the "Sophie's Choice" of choosing between different sets of vital work. "I see it as an additional plan that would require us to develop a whole new way of tracking and following what the local plans are doing," he said. "I see that as an added cost, and we just don't have any additional funds to use."

Rodrigues gives the example of the creation of an advisory council, which is required by the new legislation.

"I'm not opposed to it, I just don't have the resources to do it," he said. "Other things would have to fall by the wayside, other resources would have to be cut somewhere. The money would have to come from somewhere. What aren't we going to do, so we can do this?"

Those are valid concerns, Taylor-Stein said. But the bottom line is that the state needs to follow federal law, and those federal rules were created to protect seniors in long-term care, she said -- something the state ombudsman's office is charged to do.

"When the state first cut our funding, and we were fighting for our lives to keep our doors open," Taylor-Stein said, "programs were dying, people were laying off staff, but [Rodrigues] couldn't help us because it was a governor's decision, and he was appointed by the governor."

That can't happen, she said, when you're dealing with a population as vulnerable and dependent as the seniors in long-term care facilities.

"I would like to see a voice on the state level speaking up for residents, and we don't have that right now. When you are an advocate, your role is to advocate. That's it," she said. "That's your job."

Richard VanGorder
Since the Ombudsman program uses volunteers as ombudsmen in the counties - why doesn't the state director recruit some volunteers for his office to help with the workload?

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