The historic “compromise deal” between the nursing home industry and the trial bar now in Florida's Legislature may soon become Florida’s most epic fail for elderly nursing home residents. Here are five facts about the “sweetheart deal” that’s designed to rob residents of their rights:
Fact #1—Culpable decision makers would be immunized from accountability in cases of resident abuse and neglect
For those residents who are harmed and seek a lawsuit, they would lose any and all ability to seek punitive damages against a corporate owner. Immunity for culpable decision makers would be in all cases, regardless of the severity of the injury and almost regardless of the actions of the corporate shell investor. Residents would also lose the ability to even sue the corporate owner that fundamentally makes the decisions on how a nursing home is run, how budgets are set and how much is skimmed off for profits.
Fact #2—Residents would be prohibited from accessing records
Nondisclosure of medical records will become commonplace under this compromise deal as the entire records section would be unenforceable. If residents wish to examine their records and nursing homes refuse to furnish requested copies, then residents would be forced to hire an attorney to subpoena their records. Since the vast majority of nursing home residents are Medicaid recipients who are unable to afford legal services, this bill disenfranchises them of their federally mandated right to inspect and request copies of records at anytime without hindrance.
Fact #3—Families expect Florida to keep staffing promise
The last time the Legislature gave the nursing home industry comprehensive tort reform (2001), Floridians got a strong staffing standard in return. But in recent years, the Legislature has dropped those staffing requirements. This downturn has negatively impacted resident care as 20 percent of Florida’s nursing homes now sit atop the state’s watch list for dangerous care. Residents and families expect Florida to keep its staffing promise before considering any new tort reform.
#4—Investment capital is pouring into nursing homes
The nursing home’s bull market continued to rage through 2013 by stampeding market averages on its way to an unprecedented fourth consecutive year of strong growth. Investment analysts raved about the booming market, saying:
- “Skilled nursing stocks outperform … companies beat market averages in a bullish year.
- “Senior housing sector … made it through the Great Recession in better shape, and with better returns, than any other real estate type.”
- “Surging market and acquisition … a record year for number of publicly announced [transactions]. . . for the first time ever surpassed 200 announced transactions in a single year.”
- “The breadth of the market is about as deep as we’ve seen it as the number of players does not appear to be shrinking.”
#5—Aon’s lawsuit study is flawed, not “independent”
For the second year in a row, Aon’s Long-Term Care General Liability and Professional Liability Actuarial Analysis is little more than a morass of self-reported nursing home data.
Aon used shrouded, unverifiable records supplied solely by the large nursing home chains in response to a data call (fewer than 10 percent of Florida’s facilities participated in the so-called study). Aon willingly admits that data are “inherently uncertain” and have not been independently examined, which “could have a significant effect on the results of [Aon’s] review and analysis.”
Not surprisingly, Aon is a company that offers professional liability insurance for long-term care providers, making Aon part of the nursing home industry.
Protect elderly nursing home residents and their rights! Call your legislators and demand a "no" vote on (SB 670 and HB 569).
Brian Lee is executive director for Families for Better Care, based in Tallahassee.