Advocacy groups say the state has not done enough to protect elderly and disabled Vermonters from harm.
Vermont Legal Aid and Disability Rights Vermont have filed a lawsuit in Washington Superior Court against the state for failing to adequately investigate cases of reported abuse, neglect and financial exploitation of vulnerable adults.
As of last month, more than 700 cases were under some form of review by Adult Protective Services, a division of the Department of Disabilities, Aging and Independent Living, charged with investigating allegations of abuse, neglect and financial exploitation.
Under the law, the state has 48 hours to begin a review of a valid complaint, and if it warrants investigation, less than two months to substantiate allegations. Vermont’s response times to complaints are among the slowest in the country, according to advocates, and the state has among the lowest rates of substantiation of cases in the country.
Advocates say the system, run by Adult Protective Services in the Department of Disabilities, Aging and Independent Living, is “wholly inadequate.” Barbara Prine, an attorney with Vermont Legal Aid, said the state promised to eliminate the backlog and has not invested enough resources in the department to address the backlog.
“We have attempted repeatedly to negotiate solutions with Adult Protective Services without success,” Prine said at a press conference in front of the courthouse steps in Montpelier on Wednesday. “As advocates, we no longer can be patient. The system is gravely out of compliance and we are no longer confident the situation will repair itself without judicial oversight.”
Prine declined to elaborate on what form the judicial oversight might take.
Download the Vermont Legal Aid fact sheet on Adult Protective Services
The state’s backlog has persisted for about six years, advocates say, but they didn’t become aware of the problem until last year when statistics were released to the public. The dilatory response times to allegations of abuse have led to circumstances that have endangered the lives and well-being of a number of Vermonters, according to the lawsuit.
At this juncture, investigators are responsible for 40 to 50 cases, the advocates allege in the lawsuit. Under APS policy, investigators are supposed to carry 25 to 30 cases.
Doug Racine, secretary of the Agency of Human Services, and Susan Wehry, commissioner of the Department of Disabilities, Aging and Independent Living, were taken aback by the timing of the lawsuit and the adversarial stance of the advocates.
Racine and Wehry both said the lawsuit came as a surprise because they said they had been working in good faith with advocates to find common ground and hoped to work through remaining issues in the upcoming legislative session. Wehry said she has been systematically improving the intake and investigation protocols and she recently filled all 10 of the full-time investigator positions with a “stronger workforce.” A national consultant is expected to visit the state in January to make recommendations to the department.
“We’re making great progress,” Wehry said. “The timing is unfortunate and a distraction.”
Racine and Wehry said the lawsuit will take time away from making improvements to the investigation process.
A year ago, advocates raised alarms about a backlog of about 300 abuse, neglect and financial exploitation cases that had languished for months because Adult Protective Services didn’t have enough investigators. Only two positions out of eight were filled at that time. The problem was discovered in the waning days of the Douglas administration.
When Gov. Peter Shumlin was elected last year, he pledged to eliminate the backlog and authorized the Agency of Human Services to hire 11 investigators. The positions were temporary and part-time, however, and a number of the employees worked very few hours or quit, and instead of helping to alleviate the backlog, the churn seemed to intensify the problems in the division. By May this year, the number of cases under review was back up again to 500-plus.
Advocates, including AARP-Vermont, Green Mountain Self Advocates and the Community of Vermont Elders, threatened to sue the state unless officials adopted a corrective action plan. In May, Wehry and Vermont Legal Aid agreed to a plan that included recontacting all the people who had reported abuse, eliminating the backlog of cases, hiring more full-time investigators and meeting the statutorily required 48 hour response time.
In August, advocates and state officials said they thought it would be unlikely that the most crucial component of the corrective action plan — the elimination of the backlog on Oct. 1 – would be met. Then Tropical Storm Irene swept through the Waterbury State Office Complex and displaced department employees. The deadline goal became unattainable.
Advocates became agitated in November when they learned that the number of cases under review had topped 700. They urged the department to hire more investigators. Wehry recently recruited two new employees and launched a special investigative unit for financial exploitation.
The advocates said the number of investigators is still too low. Joan Senecal, former commissioner of the department, said in an interview in August that the state would need 15 investigators to stay on top of the complaints.
In an interview, Racine said throwing money at the problem at a time when his budget is being squeezed by an average of 4 percent wasn’t the solution. More funding for APS would have to come from somewhere else, and Racine ticked off a list of mental health, foster care and Medicaid services. The secretary said he didn’t think the situation at APS warranted an additional investment in more employees at this time. The department is creating new efficiencies, he said, including the installation of a new computer system, that he says should help to help to streamline the intake and investigation process.
Wehry and Racine both said they believed the advocates wanted a different kind of Adult Protective Services program that is not defined in statute.
“They prefer an adversarial solution in the courts instead of a solution in the Legislature,” Wehry said. “It’s been a collaborative effort up, now it’s not. We’d make better progress on a collaborative course.”
Rep. Ann Pugh, chair of the House Human Services Committee, will be taking testimony on APS investigation practices. Sen. Claire Ayer, chair of the Senate Health and Welfare Committee, will be taking up legislation passed by the House requiring the department to promulgate new rules for implementation of existing state statutes regarding abuse, neglect and financial exploitation case investigations. Wehry argued in testimony to lawmakers in the House last year that such rules were unnecessary.
Ayer said in an interview that government has a role to play in protecting citizens from harm, and she questioned the Shumlin administration’s budget priorities.
An investigative report from the Pew Research Center’s Stateline.org about Vermont’s backlog of abuse, neglect and exploitation cases was released the same day the lawsuit was announced.