After 2,557 COVID deaths in long-term care, Florida fills vacant nursing home watchdog job

Jul. 29--After leaving the position unfilled for 10 months, five of them through a pandemic that has killed 2,557 in Florida long-term care, Florida has hired a new permanent state long-term care ombudsman to advocate for nursing home residents, the Miami Herald has learned.

The job belongs to Michael Phillips, who previously served as the ombudsman program's regional manager for the district stretching from Pensacola to Jacksonville.

The ombudsman is a federally mandated role that responds to long-term care residents' needs, lobbies for pro-nursing home resident legislation and is the primary public figure within the state government who represents the vulnerable, aging population.

In the time it took to fill the position, nursing homes and assisted living facilities have been ravaged by COVID-19, taking out as many 52 residents in one facility, and the virus has shown few signs of slowing down.

The state has tried to stop COVID from leaking into nursing homes by banning outside visitors and testing staff every two weeks, but to little avail.

In the month of July alone, more than 6,700 residents and staff at nursing homes and assisted living facilities have become infected with the COVID-19, a 129 percent rise. And last week was the deadliest yet for long-term care facilities with more than 250 additional deaths reported between July 17 and July 23.

Things got so bad that on Friday that federal regulators said COVID-19 cases were rising dangerously fast at Florida nursing homes in 23 "hot spot" counties. To try to halt further spread of the virus, they're sending rapid testing machines to 85 different facilities to immediately test staff.

"The ombudsman is there to protect nursing home residents," said William Dean, a Miami-based lawyer who represents victims of neglect and abuse in nursing homes. "You would think in this time, it's the most important position in the state of Florida."

He told the Herald that he's seen worse things in Florida nursing homes than he did when he was a violent crimes prosecutor for the Miami-Dade State Attorney's Office in the 1990s.

"I can tell you stories about what's going on in nursing homes that's 10 times worse than what I used to see in the streets," Dean said.

Held-up hiring process

The Department of Elder Affairs, which oversees the Florida State Long-Term Care Ombudsman Program, was in the process of hiring a permanent ombudsman when the pandemic hit, Carol Carr, the interim ombudsman, said in an email the Herald obtained.

"The pandemic greatly curtailed the hiring process and the focus shifted to addressing COVID-19 issues," she said.

Carr took on the role in addition to her job as deputy chief of staff for the Department of Elder Affairs -- which left her "organizationally conflicted," according to a former ombudsman, Brian Lee -- in October 2019 after the most recent ombudsman Mike Milliken abruptly resigned at the end of September.

As of Oct. 24, 2019, the program had received more than 90 applicants for the position, according to public records.

Finally, on the morning of July 28, it was announced that Phillips would replace Carr.

Phillips, who has worked with the program for 14 years and stepped up to help Carr after Milliken resigned, is "top-notch" and "a tremendous selection," according to Lee, who now leads his own organization that advocates for nursing home residents. Phillips starts Aug. 3.

The position was filled just days after Lee sent an email to the Department of Health and Human Services expressing his concern over the vacant position.

Lee, who served as the state ombudsman from 2003 to 2011, said this incident was "not without precedent."

"The governor does not want the ombudsman in the way because they could be pesky," he said. "The governor's policies have been reckless for the residents. It's resulted in deaths for residents, deaths for staff."

"It just shows the governor's cataclysmic failure," Lee added.

'Is 10 months too long?'

But Phillips, who helped sort through candidates before being offered the job himself, said it doesn't matter how long the process took because the program "didn't falter" while the position remained empty.

"Is 10 months too long? The program didn't falter. So if it was too long, what's the problem? The length of time is a non-issue," the 72-year-old told the Herald. "Just in all honesty, I just don't see that as an issue. I can say categorically that there was no impediment to the work that was done."

Long-term vacancies are "never ideal," according to the national Administration for Community Living, a branch under the Department of Health and Human Services. But the interim leadership team -- which included Phillips -- continued to meet federal program requirements during that time, the ACL said.

Lee doesn't buy it, though, especially since another position within the ombudsman program -- the legal advocate -- has also been left empty for months after the last person who held the role resigned at the end of October. It's unclear when that position will be filled.

"How do we know it didn't falter? Honestly, if you don't have a leader responsible for the program for that duration, things will fall through the gaps. Carol was organizationally conflicted," he said. "So to say that nothing faltered or went through the cracks, I think just the fact that they didn't have a state ombudsman is a gap for that duration."

Under the structure of the program, volunteers typically will visit long-term care facilities and talk to residents. They report back to their district managers, who report to their regional supervisors, who report to the state ombudsman.

But since the pandemic began, the volunteers -- whose average age is 70 -- haven't gone into the nursing homes, both to protect the residents and themselves. Instead, they've been conducting their work via phone.

"I can say that the program has not faltered or missed any steps and that both [Carr] and the secretary [of the Department of Elder Affairs] have been tremendous in meeting our particular needs and any difficulties that we had," Phillips said.

But the death toll in nursing homes and assisted living facilities (ALFs) has continued to rise.

Phillips said he would not comment on the current situation with COVID-19 in long-term care facilities until he officially takes over next week. But he has some plans in store.

"As you grow older, wisdom comes with that and I intend to use that wisdom and experience that I have to propel the program," he said. "I don't want it to survive. I want it to thrive and I'm going to do everything I can to make sure that happens."

And Lee wants to believe that.

"I'm just glad that there's someone who this is their sole responsibility now," he said. "That first second he gets into that office, he should release a press release saying here's how we're going to address the problems with the pandemic. And if it's not any sort of call for molecular rapid testing, I'll be calling him."

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