Legislature 2014

Advocates say Senate nursing home bill benefits industry and trial lawyers — not patients

 

Herald/Times Tallahassee Bureau

A Senate committee Tuesday gave swift approval to a bill that is being criticized by elder-care advocates as a “sweetheart deal” designed to help nursing homes and trial lawyers make money but do little to improve the quality of care for the homes’ residents.

The Senate Health Policy Committee voted 8-1 for a bill that would shield nursing home investors from lawsuits when their homes are accused of abuse and neglect. In exchange, it would give trial lawyers easier access to documents. Other Senate committees must still review the legislation, but it has strong support among House and Senate leaders

“This benefits elders as well as their loved ones,” said Sen. John Thrasher, R-St. Augustine, who is sponsoring the bill. He said shielding nursing homes from lawsuits provides them with “extra economic protection so they can stay in business,” which is good for residents.

But Brian Lee, executive director of the Florida Family Care Association, who was the state’s elder-care ombudsman for eight years, said the bill was less about protecting elders and more about protecting profits.

“Does keeping the industry viable mean protecting the people who cut back staff levels, who demand that their residents curb food costs and say they can only have one diaper per resident every eight hours?” he said. “That’s ridiculous.”

The measure ends years of feuding between the Florida Health Care Association — which represents nursing homes — and the Florida Justice Association, which represents trial lawyers. Both are major campaign contributors in Tallahassee. The bill also has the support of AARP and the Florida Chamber of Commerce.

In the past, trial lawyers claimed the proposal to shield investors from liability would reward nursing homes for setting up shell companies to shield their owners from accountability, even though the investors were making budget decisions affecting the quality of care.

The issue became so intense that Democrats effectively used it against former Rep. Ellyn Bogdanoff in her state Senate campaign in 2012 against Sen. Maria Sachs, D-Delray Beach. Bogdanoff, a Fort Lauderdale Republican who sponsored the bill for the industry, was accused in television ads paid for by the Florida Democratic Party of having “protected shady nursing homes and sold out our loved ones.”

The nursing home industry has countered that the reforms are needed because so-called “passive investors” were being targeted by lawsuits even though they had little responsibility for the quality of care.

The new proposal, an amendment to a bill in the House by Rep. Matt Gaetz, R-Shalimar, would limit who can be sued to the nursing home’s owner and staff. If lawyers allege that passive directors played a direct role in residents’ care, they would have to get a judge’s approval to include them in the lawsuit. The bill also would make it more difficult for a plaintiff to collect punitive damages.

Trial lawyers defended their changed position by noting two provisions added to the bill this year. One would allow the state to revoke the license of a nursing home operator who refused to pay a damage award. The other would allow family members access to the medical records of the alleged victim without having to go to the expense of setting up a family trust.

Those provisions guarantee a level of accountability not present in current law, said Paul Anderson, president of the Florida Justice Association. “With that accountability, we gain adherence of greater or higher standards of care,” he said.

Not all trial lawyers support the rewrite. The Tampa-based law firm of Wilkes and McHugh, which specializes in nursing home litigation, vigorously opposes the measure, calling it a bailout for corporate nursing home chains.

“On its face, this is really kind of a no-brainer,” said Brecht Heuchen, lobbyist for Wilkes and McHugh. “Why would passive investors be hauled into court for things they didn’t do?”

He said that while the industry claims the private-equity firms that buy up nursing homes are passive, in reality they “create corporate structures to shield the assets, upstream the money and protect the real identify of the owners.”

“What the industry is saying is these people spend hundreds of million of dollars and just sit back and hang out,” he said.

Lee, of the Florida Family Care Association, said he believes the provision that allows for easier access to records is designed so that lawyers representing families “can file quick lawsuits and nickel and dime the nursing homes.” He predicted that if the bill passes and Gov. Rick Scott signs it into law, it will chase out small, independent and not-for-profit nursing homes and open the door for more corporate chains to take control.

Thrasher sees a different scenario. Without the changes, he said, the chilling effect of suing the investors “will shut some of these people down, and that is not in the best interest of the state.”

Lee predicted anyone in Tallahassee who supports the bill could be punished by voters. “I cannot imagine a legislator who would put their political career on the line in an election year with a bill that would victimize residents,” he said. “If Gov. Scott signs a bill to take away residents’ rights, he is the anti-senior governor.”

Senators who voted for the bill Tuesday include Anitere Flores, R-Miami; Rene Garcia, R-Hialeah; Oscar Braynon, D-Miami; and Eleanor Sobel, D-Hollywood. Only Sen. Arthenia Joyner, D-St. Petersburg, voted against the bill because, she said, it would shield corporate owners from liability and would shift it to administrators and nursing staff, including those who earn minimum wage.

Mary Ellen Klas can be reached at meklas@MiamiHerald.com. Follow her on Twitter @MaryEllenKlas.

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