Guidelines for state Supreme Court hearings were developed by stakeholders' group
by Hamilton Kahn
SANTA FE, N.M. — The legal rights of adults with guardians in New Mexico are now in writing.
This
"bill of rights," developed by the Working Interdisciplinary Network of
Guardian Stakeholders (WINGS), will guide the state Supreme Court in
all hearings involving guardianship, a news release from the
Administrative Office of the Courts said.
Among 21 rights, the document gives adults with guardians the right
to be treated with dignity and to take part in all decisions by the
court affecting them, the release said.
WINGS was created by the
court to evaluate New Mexico laws governing guardianship and
conservatorship. Its members include judges, professional guardians and
conservators, health care providers, attorneys, legislators and family
members.
"WINGS believes the Supreme Court's adoption of this bill
of rights will improve the fairness of guardianship proceedings and
help both guardians and people under guardianship understand their
rights and obligations," said WINGS chair and District Court Judge Lee
A. Kirksey.
The next WINGS meeting is scheduled for 2 p.m. on June
13 at the Administrative Office of the Courts in Albuquerque. More
information is available online at adultguardianship.nmcourts.gov.
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.
“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.
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.”
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.
“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.
