Anatomy of a Backlog: How Vermont Fell Behind on Adult Protective Services
By Melissa Maynard, Staff Writer
BURLINGTON, Vermont — Cerebral palsy does not thwart Chris Osborne's passion for chess and all kinds of music, from hard rock to opera. But Chris, who is 25 and lives near Burlington, does depend on others to dress, feed and bathe him, as well as to clean and change his feeding tube. He can communicate only through a digital device or an eye-gaze board, which allows him to spell words by looking at the letters.
Last year, Chris' mother, Nancy Osborne, and her fiancé, Art Demarais, began to suspect that the professional caretaker living with Chris in his apartment had stopped doing key parts of his job. Sometimes, when Chris came home to visit, Nancy noticed that her son was caked in dirt and covered with rashes. Chris had made multiple trips to the emergency room to treat infections related to improper cleaning of his feeding tube. And he often complained of being hungry: Thin to begin with, Chris lost 23 pounds in six months.
The adult protective services (APS) system in Vermont, as in other states, is designed to intervene in exactly such situations. State investigators respond to allegations of physical abuse and neglect, emotional abuse, and financial exploitation against elders and adults with disabilities, coordinating with law enforcement and prosecutors if necessary. When APS is able to confirm that abuse in fact occurred, the names of the perpetrators appear on a registry designed to prevent them from working with vulnerable populations in the future.
Unfortunately for Chris and his family, Vermont's APS system was embroiled in its own crisis when his case was reported on May 13. Investigators were struggling to work through a huge backlog of hundreds of open or unassigned cases. And new cases were coming in much faster than the old cases could be closed.
An APS investigator scheduled an in-person meeting with the Osbornes less than a week after the report was filed. But she never showed up for the appointment. "We called and left messages every day for 10 days, and it was like she'd fallen off the face of the earth," Demarais says. As it turns out, the investigator had quit, likely due to burnout — a common fate for staff in the Vermont APS unit.
Only after a politically connected friend helped the Osbornes bring their grievances to the governor's office did an investigator launch into Chris' case. Even so, the case remains unresolved. "It sort of boggles the mind that APS hasn't been able to confirm it yet," says A.J. Ruben, an attorney with Disability Rights Vermont, an advocacy group that has been monitoring the case. By agency policy, APS cases involving physical abuse or neglect are supposed to be resolved within 30 days, but this appears to be happening in only a fraction of cases.
Chris is out of danger now. HowardCenter, the nonprofit contractor that had employed his caretaker, pulled Chris from the apartment and fired the caretaker. After moving in with his mother for the summer, Chris has returned to another apartment overseen by HowardCenter, with a pair of new caretakers who treat him well.
Still, the Osbornes are frustrated with the way the case has dragged on. Only if APS officially substantiates the charges can they be sure that Chris' previous caretaker won't be employed in a similar situation again. In addition to physical neglect, the Osbornes allege that the caretaker financially exploited Chris, using Chris' checkbook to pay for everything from his car registration to large volumes of pizza. According to Chris, the caretaker punished him for wetting his pants by taking away his internet access and digital communication device, and fined him whenever Chris didn't remind him to provide water. (The Osbornes provided extensive documentation of their allegations to Stateline and Disability Rights Vermont; HowardCenter did not respond to Stateline 's requests for comment.)
"We're going on six months now," Nancy Osborne says of the APS investigation. "It's unacceptable. He could still be working there — or somewhere else."
A national problem
Vermont isn't the only state whose adult protective services program is struggling to keep up with its work. A Government Accountability Office report from March 2011 found that elder abuse cases, in particular, are growing nationwide in both volume and complexity. However, according to the GAO's survey of state programs, "APS program resources are not keeping pace with these changes."
Vermont's current backlog of 733 open or unassigned cases highlights the depth of the challenges. The story of how a small state ended up with such a large pile of unfinished work is a case study in the most unpleasant truth about backlogs: Without sufficient resources or manpower, a backlog can be impossible to resolve even when managers recognize the severity of the problem and work hard at fixing it. Meantime, the human toll can be tremendous.
The situation in Vermont spans two administrations. When Democratic Governor Peter Shumlin took over in January, he inherited an existing backlog of 400 cases. In May, facing the threat of a lawsuit, the Department of Disabilities, Aging & Independent Living (DAIL) entered into a formal corrective action plan with advocacy groups including Disability Rights Vermont and Vermont Legal Aid. In the plan, DAIL, the agency responsible for APS, formally acknowledged that it was not fulfilling its obligations to protect vulnerable adults under state law.
Eight months later, the advocacy groups are dismayed by the agency's failure to meet many of the benchmarks outlined in the plan. "The state appears to be relatively content with the status quo, which is troubling given how bad the situation is," says Ruben of Disability Rights Vermont. "We have very little confidence given the last eight months of really intense scrutiny and their basic failure to make any real progress."
On Wednesday morning (December 14), Disability Rights Vermont and Vermont Legal Aid filed a lawsuit against the state of Vermont in Washington County Superior Court alleging that it is failing to live up to its obligations under state law.
In May, the agency promised to eliminate its backlog of 234 unassigned cases, a subset of the overall problem, by October 1. However, some 158 cases still have not been assigned to investigators. "The aspect of this that I didn't expect was how long it would take to turn it around," acknowledges Susan Wehry, who took over as DAIL's commissioner in January. "Even in the face of support from the administration."
By other important measures, the problem has actually grown since May. The number of unassigned cases was reduced in part by giving investigators more cases than they have the capacity to actually investigate and close in a timely manner. The overall backlog of open or unassigned cases grew from 554 in May to the current 733 — an increase in the actual amount of work that remains to be completed.
'The elderly victims always lose out'
As the nation grows older, state-run adult protective services programs will be more crucial than ever. But according to experts who have studied them, the programs aren't well situated to handle the growing job of protecting vulnerable elders from abuse by their caretakers.
Adult protective services, or APS, bear some similarities to state-run services that protect children from abuse. But unlike child protective services, APS programs tend to lack a vocal lobbying constituency in state budget debates. State APS programs receive no dedicated federal funding, and there is no federal oversight of state programs or benchmarks of minimum performance. A March 2011 Government Accountability Office report found that shortcomings in data collection make it difficult for state APS programs to assess their own effectiveness and compare themselves with peers.
State APS programs vary dramatically in structure and services offered. Some, like Vermont's, investigate abuse no matter where it occurs. Others leave abuse that occurs in long-term care facilities to state licensing agencies. Definitions of what constitutes "abuse" and the universe of people served also vary significantly. Some state APS programs include "self-neglect" as a form of abuse, for example, or don't investigate abuses against people with disabilities unless they are over a certain age.
"They have very different characteristics," says Marie-Therese Connolly, an elder rights lawyer who received a 2011 MacArthur Fellowship to further her advocacy work on elder abuse. "If we were actually studying the relative efficacy of one model versus the other, then we might be getting somewhere. We don't even have a measurement for success or a definition of what constitutes success."
Backlogs in APS cases like the one Vermont is experiencing are common. Utah has lost 11 of its 31 caseworkers since 2007, even as the number of cases accepted for investigation has grown from 2,260 in 2007 to 3,351 in 2010. Utah has responded by narrowing its scope of services. The state eliminated a "protective payee" program that helped manage the finances of victims of abuse. It also eliminated many follow-up case management services once offered to victims. As Debbie Booth, information specialist for the Utah Division of Aging and Adult Services, puts it, "Now, we pretty much have to get in and get out."
Eileen Carroll, deputy director of the California Department of Social Services, says that the lack of federal mandates has made California's APS system particularly vulnerable to budget cuts over the years. In California, programs are run by counties. Other states with county-run systems also appear to have some of the deepest funding troubles.
County-based systems in California, Ohio and Alabama all have begun relying on child protective services workers to respond to both child abuse and adult protective services cases. This concerns some in the field, who say the two skill sets are not as interchangeable as they may seem. "It's really difficult for these CPS workers because they don't have the training," says Andrew Capehart, APS supervisor for the Franklin County Office on Aging in Ohio. "They don't have experience dealing with older adults."
Where backlogs are persistent, prioritization is also a concern. "The children are always going to be the priority," says Ricker Hamilton, director of the Maine Office of Elder Services. "Anytime that we have that mixture, the elderly victims always lose out."
A structural imbalance
For Wehry and her beleaguered APS team, it sometimes feels like much larger forces are working against them. One of them is nature: Hurricane Irene flooded DAIL's offices in August, forcing a disruptive permanent relocation this fall. But a backlog as entrenched as Vermont's doesn't grow from a single storm. Nor is it the result of a single fateful budget cut or a sudden spike in demand for services. It takes years to develop.
For at least six years, Vermont has been seeing a steady ongoing increase in the number of APS cases. Some of the rise may be due to the aging population: According to the latest census, Vermont is the nation's second oldest state. In addition, the cases reported to APS are growing increasingly complicated. There are more cases involving allegations of financial exploitation — a byproduct of a strained economy — or diversion of prescription drugs. The more complex cases are simply harder to untangle and require more time to investigate.
As the caseload grew, funding and staffing for APS didn't keep pace. While the program hasn't absorbed major funding cuts or reductions in staffing in recent years, it hasn't received any increases to match caseload growth, either.
Meanwhile, the statute governing APS in Vermont has been beefed up over the years. The universe of people who can be considered victims has widened over time to include all vulnerable adults regardless of age. So has the definition of what constitutes abuse. There's also more paperwork for staff. There are specific requirements governing how and when updates will be provided to the involved parties. When an allegation of abuse is confirmed, state law requires APS to provide protective services in accordance with a written "coordinated treatment plan" — ensuring that victims have access to relevant social services.
"All of it was done with good intentions, but with no additional staff to handle all that work," says Joan Senecal, a former DAIL commissioner who retired in June 2010. "The APS statute really doesn't reflect the reality of the resources that are available to work with. If you write a statute and you cannot carry out the requirements, then you're setting yourself up for failure."
The only deadline stipulated in law is a 48-hour window during which an investigation must be "commenced" — a term that is open to interpretation. The current operational definition used by the agency counts the initial phone contact, during which an intake specialist conducts an in-depth interview with the person who reported the alleged abuse. That conversation sometimes happens months before the case is actually assigned to an investigator, let alone any face-to-face contact with the alleged victim.
Senecal, who served in the agency for 17 years, faced similar challenges during her time overseeing APS. At one point during her tenure, some investigators were carrying as many as 100 open cases. "That's not humanly possible," she says. "You know people are left in jeopardy. We were burning investigators out." Investigators brought home with them their anxiety about people potentially left in harm's way. Most investigators didn't last in the position for long.
Senecal believes there are only two solutions to the current problem: Either lawmakers need to allocate sufficient resources to get the work done, or they need to bring the demands of the APS statute in line with fiscal reality. "I have my doubts about whether you can do anything to improve the program without additional investment in staff," she says. "The caseloads are simply too high."
A new low
These long-term structural problems in APS built up for years. Last fall, the system finally imploded.
Turnover among investigators was always high, owing to the high stress and relatively low pay that comes with the job. But as the APS workload became increasingly unbearable, an unusual number of investigators resigned. October 2010 was the lowest of low points in anyone's memory. Between people quitting and going out on medical leave, the agency was left with only two investigators, despite having funding for 10 positions. "We were limited to a couple of permanent investigators trying to respond to the most serious cases throughout the state of Vermont," says Elizabeth Manfredi, a former investigator who now runs the APS program for Wehry.
As the backlog grew, APS developed a triage system to prioritize incoming reports of abuse. Cases where serious physical harm or sexual abuse was alleged were addressed first. The job of taking calls and conducting initial screenings became paramount: If a call was deemed low priority, it was doomed to long delays.
But there wasn't much of a protocol in place for prioritizing work or even collecting full information. "There would be intakes where we wouldn't even have an accurate phone number or an address for the alleged victim," says Shawna Agel, the only current investigator who has been around APS since before last fall. "We wouldn't even know what their disability was or what made them a vulnerable adult. Sometimes we would have a very vague allegation of abuse, so we would really have to start off from the beginning, finding first of all, where this person was."
Forming a response
Wehry is not a person who believes in Band-Aids. A highly analytic, data-driven manager with a background in geriatric psychiatry, she immediately fixed her sights on the long-term goal of creating a stronger and more sustainable APS system when she arrived at DAIL in January. But there was a lot of pressure from local media and advocates like Vermont Legal Aid to move quickly. "The crisis had a name and it was 'backlog,'" she says, "and the solution had a name and it was 'hire more investigators.' In some ways, it threatened to preclude further exploration." She wanted to treat the root causes of APS' problems - such as weak data management systems — not just the symptoms.
Over time, the department got better at triage. There is now a sophisticated intake process in place that allows investigators to jump right into a case without wasting time searching for basic information. Meanwhile, APS staff went through all of the backlogged cases and called back the people who had originally reported the alleged abuses for a quick status check. "We didn't have any way of knowing, particularly in some instances where there had been a significant passage of time, whether the situation had remained stable or deteriorated," Wehry says.
Gradually, the agency also began staffing back up. Wehry pushed the state's human resources agency for a review of the pay grade for APS investigators. In April, she won approval for a salary bump, both for current investigators and those the department was recruiting for. A few weeks ago, APS hit a landmark: All of its permanent positions were finally filled. "That is one of the pressures that's always there: Just hire more people," Wehry says. "It's been somewhat unpopular, but we've taken the position that we're going to take our time and hire qualified people. We're going to orient them and train them and upgrade the position."
The better pay has helped recruit a higher-skilled workforce that includes investigators with backgrounds in law enforcement and law. In addition, the agency bolstered training and developed new protocols to make sure that employees have the skills they need to be successful in the position. A pool of temporary investigators was hired to help the agency work through old cases.
Despite support from the governor's office to add investigator positions if necessary, Wehry wants to wait. A national consultant is coming to assess the situation in January. And a new IT system is set to be launched early next year. It will allow the agency to track where cases are in the process and how much time each part of the process is taking. Wehry doesn't want to hire more people before she has authoritative answers to those kinds of questions.
Wehry insists that APS is well on its way to getting its backlog of cases shrinking rather than growing. She says many open cases are nearing completion — the only work that remains on them is for final reports to be written — although there's no way to prove that with department data.
By most measures, however, the math still looks daunting. An average APS case in Vermont takes 18 hours of work to complete. Even with a workforce at its current strength, it would take investigators a month and a half to work through unassigned cases, plus as many as five more months to finish open cases at varying levels of completion. And new work keeps coming. In 2011, new cases have been outnumbering closed cases by more than two to one.
Back of the queue
Frontline social workers and advocates who serve disabled adults and elders in Vermont say they aren't seeing many signs of progress. Some have grown so frustrated with making reports into what feels like a black hole that they are redirecting clients elsewhere for help when they can.
"As an organization, we have felt that it's important to find other resources for people," says Karen Topper, state coordinator of Green Mountain Self-Advocates, an advocacy group for people with developmental disabilities. Steering a client away from APS requires a delicate dance, Topper says, because her status as a "mandated reporter" means that she is required to refer cases of suspected abuse, neglect and exploitation to the state. She's taken to cutting short her conversations with some help-seekers, sending them to a confidential hotline that she believes will serve them better than APS can.
Thanks to APS' prioritizing of physical harm cases, the cases that are being pushed back the farthest involve financial exploitation. These can be particularly difficult to unwind. In one case worked by Vermont Legal Aid, a traumatic brain injury victim was allegedly being exploited by a nephew. The nephew was the client's guardian, as well as his "payee," meaning that he was authorized to cash government checks on the client's behalf. The nephew started paying the client's rent erratically or not at all. Legal Aid was able to prevent the client from losing his housing and eventually helped secure a new guardian and payee. But between the home provider, who had been fronting the client food and letting the rent slide for four months, and money that should have been going to the client to live on, $2,804 was lost.
"If the investigation had started at the beginning, the guardian nephew would have felt watched and would have stopped," says Barbara Prine, an attorney for Vermont Legal Aid. "We were able to stop the hemorrhaging of money, but the money that is gone is never coming back."
Prine says she supported APS' prioritization system at first as a way to ensure that the most severe cases were attended to. But now, she worries about the impact of some of these lower priority cases. Financial exploitation is often linked with other forms of emotional abuse. And it can leave vulnerable people with drained bank accounts. "DAIL can say 'those cases that are waiting aren't that important,'" Prine says. "It becomes a justification for keeping people waiting months. That's been a problem. I was more comfortable with that when I really thought that the waitlist was going to go away."
Adult protective services in Vermont by the numbers:
733 open and unassigned cases
10 full-time investigators
5 temporary investigators
44 cases (average) assigned to each investigator
18 hours needed to resolve average case
2.2 to 1 ratio of new cases added to cases completed
Despite APS' prioritization system, there's evidence that some cases involving physical harm are still falling through the cracks. One particularly disturbing episode occurred in September.
Samantha Baraw had reason to be concerned about her client, an elderly woman with severe dementia. Baraw oversees a small Area Agency on Aging office near the Canadian border. She noticed that the woman's daughter, who was her caretaker, had requested that home health workers stop coming to their home. When a nurse showed up at the house for a scheduled visit, the daughter and a male friend wouldn't allow her to see the client.
Of additional concern to Baraw was the fact that there had been domestic violence problems in the house before. The daughter's boyfriend had been sent to jail for choking her and was recently released. It wasn't clear if the male friend in the house was the same person. The friend claimed to have medical knowledge and told the nurse that there was a stage two ulcer on the client's back.
Later that day, Baraw's agency sent two additional caseworkers and demanded to see the client. They were only able to get a glimpse by distracting the daughter. They found a frail woman who was thinner than they'd ever seen her. "Her Depends were soiled," says Baraw. "They were gaping."
The agency placed an urgent call to adult protective services out of immediate concern for the client's safety, but couldn't get through to a live person. A voicemail message was left, and three APS staff were emailed that day about the case. This was September 16, a Thursday. An intake specialist called back and was given detailed information about the situation on Friday evening.
By Monday morning, the client was dead. When Baraw called APS to provide an update, the person on the phone couldn't find any record of the intake conversation. "Their response was, 'Oh then, we'll just close the case,'" Baraw recalls.
APS' response concerned Baraw. The daughter had spent much of her life as a caretaker — she had also cared for both her father and husband during long illnesses before they died. Despite her suspicious behavior during her mother's final days, the daughter seemed interested in pursuing more work as a caretaker. That's an outcome that only APS could prevent, were an investigation to prove that behavior rising to the level of abuse occurred. "Our big concern is that she was very income-focused," Baraw says. After her mom died, she told a caseworker, "I guess I'm going to have to get a job taking care of somebody else."
Wehry provided Stateline a written response to these claims but says she is prevented by statute from discussing confidential details. "The intent of the APS statute is to protect vulnerable adults," her statement said. "Once an alleged victim's safety is no longer an issue, our immediate responsibility is fulfilled and the urgency of the investigation drops down to a lower level. However, the investigation of alleged perpetrators does proceed and is confined to past and present actions; it does not extend to events that might occur in the future. This would be beyond our authority. If new allegations arise and are reported to the investigators, these will be pursued as well."
Still, Wehry called this and other stories brought to her attention "troubling." "Our collective inability to prevent the hardships described both saddens and inspires me to work harder to fulfill our mission," she said.
The case in question remains open. Baraw received no further contact about the matter from APS until an investigator visited her in person on December 5 — four days after Stateline had requested a comment from APS on the case.
Abuse and neglect cases in which the alleged victim dies are far from the norm. But extremely severe cases do appear to be on the rise in Vermont, according to Linda Purdy, an assistant attorney general who prosecutes elder abuse and Medicaid fraud cases.
Purdy believes elder abuse, in particular, to be increasing. This is why she is concerned that the number of cases APS has been referring to her office for prosecution has been declining. The office received 322 abuse complaints in 2008 but only 106 in 2010. Of the referrals that were received, the severity of the alleged abuse is much greater, and the number of death investigations has risen. Then there is this startling fact: Four of Vermont's nine adult homicide victims in 2010 were aged 78 to 89.
"We are seeing a significant increase in the severity of elder abuse in this country and there is very little political capital and money being spent to try to prevent and educate or investigate and prosecute," Purdy says. "We are going to be in serious trouble if we don't deal with it."
Editor's Note: This story has been updated to note the filing of the lawsuit against the state, which was announced at 10 a.m. on December 14.