Do Florida nursing home patients need a bill of rights?

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A week before Valentine’s Day last year, an Orlando nursing home sent nine of its residents on an outing to a local super store with a single assistant to supervise. All the residents needed round-the-clock care, five were in wheelchairs and three used walkers.

One elderly resident desperately needed to use the bathroom but couldn’t find the assistant, so he tried to go on his own — ultimately losing his balance and control of his bowels, falling in his own feces and breaking his hip. A stranger had to help him while the store paged the nursing home staffer, who then neglected the other eight residents to tend to the emergency.

For that and other actions posing “immediate jeopardy” to residents — including failing to provide kidney dialysis to another resident — federal regulators fined the nursing home, Avante at Orlando on North Semoran Boulevard, nearly $1 million in 2017. They cited 20 health violations and placed it on a national watch list for its failure to correct repeated problems.

But advocates for residents say it’s not enough.

Because of facilities like Avante with track records of putting their patients in danger, some want to change the Florida Constitution, adding a nursing home and assisted-living facility residents’ bill of rights. Doing so, they say, would not only add more protections, but it also would shield residents from state legislators and presidential administrations that might roll back existing regulations under pressure from the nursing home industry.

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“The public is completely in the dark about what happens in some of these facilities,” said Brian Lee, a former nursing-home watchdog for the state who now heads the national advocacy group Families for Better Care. “Even the tragedy of 12 nursing home residents dying from neglect after Hurricane Irma — deaths that were categorized as homicides — has not been enough to shame the industry into making changes.”

The Rehabilitation Center at Hollywood Hills in South Florida was evacuated Sept. 13 after power was knocked out by the storm and temperatures inside soared. A dozen elderly residents ultimately succumbed to heat exposure; one had a body temperature of 109.9 degrees.

That facility is still fighting to keep its license.

The tragedy led Florida Gov. Rick Scott to call for all nursing homes and assisted-living facilities in the state to install sufficient backup generators and have 96 hours of fuel on site to keep temperatures safe in case of power failure — a proposal that prompted four months of lawsuits and negotiations by the industry before reaching an agreement this month.

There’s nothing in this proposal that would have prevented what happened in Hollywood Hills. They’re just capitalizing on a tragedy. — Kristen Knapp, spokeswoman for the Florida Health Care Association, an industry group

It also prompted the governor to ask the state’s Constitution Revision Commission — which examines the Florida Constitution every 20 years for possible changes — to look at whether there are ways that the document could offer better protection for residents of long-term care facilities.

 

The result is Proposal 88, which is now being aired in public hearings throughout the state. If approved by the commission, it would go before voters in November.

The proposal establishes the right for residents to be treated “courteously, fairly and with the fullest measure of dignity,” given “adequate and appropriate health care” and live in “a safe, clean, comfortable and homelike environment” with “reasonable precautions” against natural disasters and extreme climatic conditions.

It also says residents have the right to access courts, have speedy trials and sue without limitations for damages, that they can’t be asked to waive those rights, and that the facilities must carry liability insurance sufficient to ensure that residents and their families are “justly compensated.”

Avante did not respond to several requests for comment on Proposal 88, nor did it respond to the federal fines and citations. But the industry as a whole is adamantly opposed to any such language in the state’s Constitution — even though some of the rights are already part of laws previously enacted by the Florida Legislature and the proposal doesn’t spell out the consequences for nursing homes that don’t comply.

“We don’t believe it’s really focused on residents’ rights. We think it’s focused on expanding lawsuits,” said Kristen Knapp, spokeswoman for the Florida Health Care Association, which represents the state’s nursing home industry. “There’s nothing in this proposal that would have prevented what happened in Hollywood Hills. They’re just capitalizing on a tragedy — on an egregious case — for which there are criminal charges. There are already 32 lawsuits filed against that building, so clearly there is already an ability to sue.”

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The proposal was filed by Constitution Revision Commission member Brecht Heuchan, one of the governor’s appointees to the commission. Heuchan, a lobbyist who owns a political data company, has come under fire because of his clients — including the Florida Justice Association, a group that represents trial lawyers, and a law firm that has sued nursing homes. He dismisses those criticisms.

“In this state, someone living outside a nursing home has more rights than someone living inside of one,” he said. “All I’m doing is trying to restore the balance of power for these facilities that care for 70,000 Floridians who indisputably are the most frail, most vulnerable, possibly the biggest targets for exploitation.”

State law, for instance, requires the facilities to carry liability insurance or be self-insured, but not at specific levels, and critics have accused the facilities of routinely attempting to get residents to sign away their rights.

Knapp counters that nursing homes can no longer find insurers to write the liability policies after most carriers pulled out of the market.

Many now self-insure; Lee points to evidence that facilities should have the means to do so.

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“Record-setting bed valuations, billions in guaranteed revenues and robust profit margins have pushed the senior care market to become one of the fastest growing, most highly profitable health care sectors,” he said.

At the same time, the Trump administration has pushed to soften fines against the industry — making the nearly $1 million penalty against Avante likely a thing of the past. New guidelines even discourage regulators from levying fines in certain situations.

And the state began redacting inspection reports of the facilities last year so severely that it made them virtually unintelligible to the public.

“This underscores why Proposal 88 is needed — to ensure residents’ rights and protections are not watered down or ridden roughshod over by politicians,” Lee said.

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Do Florida nursing home patients need a bill of rights?