Gov. Peter Shumlin has vetoed his first bill this session. The offending piece of legislation? H.290, a law that would have required a state agency to submit monthly reports on elder abuse to the Legislature. The current reporting requirement is annual.
The governor accused lawmakers of wasting taxpayer money, creating unnecessary red tape and distracting the Agency of Human Services from doing its job.
“Coming from a private sector background, I have always been frustrated by unnecessary bureaucracy and paperwork that exists in state government,” Shumlin said. “Instead of focusing on outcomes, these impediments to progress cost taxpayers too much money and deliver little by way of results.”
Lawmakers were shocked by the governor’s veto and one suggested that it was the first time a “report bill” had received the gubernatorial boot.
Sen. Claire Ayer, D-Addison, who helped to draft the legislation, said legislators worked hard to develop compromise language. Senate and House conferees met with Shumlin administration officials for two hours on a Saturday to negotiate the particulars. Up to moments before the bill was supposed to be signed, lawmakers agreed to allow the administration’s lawyers to tweak the bill one last time.
Rep. Sandy Haas, P-Rochester, said she was flabbergasted by the veto.
“We worked with them and we came to an accord, and they said, ‘Fine, we can do it,’” Haas said. “That’s the place where we’re scratching our heads.”
Ayer took umbrage at the governor’s message to lawmakers. “It was an insulting, condescending veto,” Ayer said. “I think he must have the wrong information because it’s a good bill.”
Legislators say the new monthly reporting rules for the Adult Protective Services division, which is responsible for ensuring that the elderly and disabled adults are protected from abuse, neglect and exploitation, are necessary because the division has been underfunded for years and as a result hundreds of cases have been ignored.
The legislation calls for an independent, $75,000 study, commissioned by the Legislature. (It was originally requested in 2009.) The Department of Disabilities, Aging and Independent Living recently asked a consultant to analyze the Adult Protective Services protocols for investigating allegations of abuse and that report came out in January; lawmakers say the study doesn’t answer questions they’ve raised about the effectiveness of the troubled program.
The dispute appears to boil down to a lack of trust between the Legislature and the administration. The Shumlin administration says progress is being made on a long-running problems with Adult Protective Services that began during the Douglas era; lawmakers want proof that there have been improvements in the form of rigorous data disclosure.
For years, the division has not kept up with reported abuse cases, most of which come from advocates from the elderly. Under statute, the state is supposed to investigate reports within 48 hours; last year about 300 cases went weeks, and in some cases months, without followup.
Several hundred reports of abuse, neglect and financial exploitation submitted by physicians, social workers, caregivers, family members, neighbors and advocates for elderly and disabled Vermonters were relegated to a backlog last year.
After the Shumlin administration moved half of the cases onto a waiting list and then allegedly eliminated 90 cases in the backlog, Vermont Legal Aid and Disability Rights Vermont filed a lawsuit against the state last December.
The backlog and waiting list numbers became the focus of the dispute now in Washington Superior Court, and the history of the way in which the cases were handled remains unclear.
Doug Racine, secretary of the Agency of Human Services, says the state has hired more investigators and is making progress on an issue that began with the Douglas administration. According to data from the Department of Disabilities, Aging and Independent Living, there were 447 cases under investigation as of March 30. Ten investigators are charged with determining whether the accusations of abuse, neglect or financial exploitation can be substantiated.
Racine says the lawsuit is a “distraction” from the investigative work that needs to be done and he is frustrated that Vermont Legal Aid didn’t give the administration more time to implement new programs.
The requests from lawmakers for detailed information about the size and nature of the waiting list are also seen as a “distraction.” (Lawmakers say they want data going forward, not information from last year, which is the subject of litigation.)
“We were clear the legislation wasn’t needed and could get in the way of getting the work done,” Racine said.
The governor lanced into lawmakers for proposing a bill that “does nothing to advance the goal of protecting those vulnerable Vermonters, and adds yet another layer of bureaucracy to state government, and wastes taxpayer dollars.”
“By requiring expensive, time-consuming, and duplicative reports by the Agency of Human Services to the Legislature, this bill distracts AHS from doing its job: protecting our most vulnerable Vermonters,” Shumlin said.
The monthly reports would have required data on more than a dozen criteria, Ayer said, but the information queries are built into the “off the shelf” software program the department recently purchased, and so lawmakers felt the requirements were wouldn’t be a burden for staff to produce.
“We understood it was just a matter of pushing the button,” Haas said. “It takes longer to print than to do the work to ask for it.”
As for the $75,000 independent study, Haas said the money could come out of the $4 million surplus in the Choices for Care program, which keeps elderly Vermonters in their homes.
Haas said the report is necessary because the analysis of Adult Protective Services conducted at request of DAIL Commissioner Susan Wehry did not answer the questions raised by lawmakers in a 2009 provision. When Maria Greene, the consultant hired by Wehry, testified, lawmakers were dissatisfied with her report. “We didn’t feel she could answer questions we were asking,” Haas said. “We were not satisfied; it was not the independent evaluation that we needed.”
In an interview, Racine strenuously objected to the statutory monthly reporting requirement and the study. He said lawmakers were requiring much more extensive oversight than he’d seen before at the Agency of Human Services. The monthly reporting mandate, he said, would take away resources from the staff of 10-12 investigators in Adult Protective Services. The study, in his view, is redundant.
“I made it very clear to the committee we would be happy to report on request as the administration does with legislative branch, but I felt we didn’t need to write it into statute,” Racine said. “The offer is always there.”
The Vermont Legal Aid lawsuit
The governor’s veto came a day after he signed H.413 into law, which gives the state the authority to seek civil penalties for perpetrators of elder abuse.
Barbara Prine, lead attorney for Vermont Legal Aid in the lawsuit, said Shumlin is sending Vermonters a mixed message about the state’s role in elder abuse protection.
“We believe in civil enforcement as well, however, the first step is the APS system, and obviously, the Legislature had concerns about what’s going on with APS,” Prine said.
Prine said H.290 would have been a vehicle for the administration to restore trust with advocates, legislators and the public.
Meanwhile, the Vermont Legal Aid case is wending its way through the court system.
Prine amended her original complaint in response to questions about the legal standing of the plaintiffs (the Washington County Superior Court judge in March said the individuals in the Legal Aid case weren’t directly affected by problems at APS). Now four organizations — Community of Vermont Elders, Senior Solutions, Southwest Vermont Council on Aging and Disability Rights Vermont — are plaintiffs in the suit which alleges the state of Vermont is not meeting the statutory mandates to ensure vulnerable adults are receiving adequate protection.
The new court filing cites allegations of abuse reported by the four organizations that they say APS ignored. In one case, a disabled man committed suicide two months after a Vermont State Police advocate filed a report with APS that he had been abused and financially exploited by his ex-wife. In another case, a daughter repeatedly stole pain medication from her mother. The incident was reported to APS but no action was taken. In another case, an elderly woman with cognitive and physical disabilities was neglected and exploited by her boyfriend. Later she was found sitting in feces and was transported to a nursing home. Reports had been filed when signs of abuse first emerged, but “the only contact from APS was a follow up call in November 2011 to the case manager checking on the situation 5 months after the report was made,” the lawsuit alleges.
Prine alleges that reports take weeks, even months to investigate and that means abuse can continue unabated. If allegations can be substantiated, perpetrators are supposed to be listed on the state’s abuse registry.
The Shumlin administration’s request that the lawsuit be dismissed was denied.
Read more about the Vermont Legal Aid lawsuit.
Read more about the history of the troubled APS division.
Editor’s note: This story was updated between 5 a.m. and 7 a.m. May 17.
