Florida Alert! Legislative Onslaught is 'Direct Attack' on Nursing Home and Assisted Living Residents and Their Rights

January 29, 2020

Florida lawmakers have launched a direct attack on residents living in nursing homes and assisted living facilities through a slew of veiled deregulation bills.

Even the good ideas we've highlighted in this update are little more than sugar coating to make these bills supposedly easier for us to swallow.  

Passage of any of these nefarious bills will almost certainly cripple facility accountability and enforcement for generations to come.  Residents and their families will be very hard pressed to ever get these protections back in force.  

What follows are the "so-called good" and the "very real bad" of each proposal.

SB 402 / HB 767

Sponsors: Senator Gayle Harrell (R-Stuart); Representative Michael Grant (R-Charlotte)

THE SO-CALLED GOOD FOR RESIDENTS…
✓ Permits use of “assistive devices” to help with resident transfers and prevent falls.
✓ Not much else.

THE VERY REAL BAD FOR RESIDENTS…
✓ Waters down inspection process.
✓ Muzzles watchdog.
✓ Authorizes creation of expensive bureaucracy singularly designed to shield tardy providers from paying “late fees."  
✓ Inconsequential new rights.   

The bills’ sponsors claim that this legislation is needed to “modernize” outmoded assisted living care; arguing that the permitting of “assistive devices” to help with transferring residents is the missing spark of safety innovation.  While the addition of the assistive devices language could be helpful, it’s certainly not enough to warrant this legislative package.  A closer look at these voluminous bills expose their true intent, and that is to decrease accountability through deregulation in three ways:  

SB 402 and HB 767 would restrict the inclusion of long-term care ombudsman complaints from the Agency for Health Care Administration’s inspection evaluation process by creating a nearly impossible standard for ombudsman complaints to be considered.  If that happens, many more assisted living facilities would be gifted a watered down inspection process called “abbreviated surveys.”  That regulatory constraint would increase the likelihood of residents being abused and neglected.  

SB 402 and HB 767 would remove the assured inclusion of ombudsman comments when developing assisted living rules.  Current law provides an insularly layer of protection to the ombudsman office by guaranteeing the program’s voice to be heard on behalf of residents when assisted living rules are developed.  The structure of the ombudsman office makes it particularly vulnerable to organizational conflicts that may impugn its ability to engage in systems advocacy.  Assisted living residents should have the confidence that there is a biased resident advocate representing their concerns whenever quality of care standards are debated by state officials.  The demotion of the ombudsman in ALF rulemaking muzzles the residents’ voice in that process. 

SB 402 and HB 767 would create an unnecessary early warning system for providers who fail to file adverse incident reports as required—at taxpayer expense no less.  This provision is all about saving the industry a few bucks and does nothing to help residents.  Assisted living facilities are frequently fined but the Agency for Health Care Administration for failed submission of adverse incident reports in a timely manner.  Adverse incidents contain information about the worst of the worst cases of abuse and neglect.  They alert state officials to dangerous situations happening in assisted living facilities.  Examples of adverse incidents include “death”, “brain or spinal damage”, “permanent disfigurement”, “bone fractures”, or any other circumstance in which a resident “required medical attention” and was unable to give consent.  SB 402 and HB 767 would require the Agency to alert providers of approaching deadlines so they could get their reports in on time, potentially saving them on costly “late fees.”  

RECOMMENDATION: Thwart assisted living deregulation by withdrawing SB 402 / HB 767, or amend to:

• Ensure inclusion of all ombudsman complaints in the Agency’s inspection review process;
• Prioritize the ombudsman’s voice in assisted living rule development; and
• Revert the adverse incident reporting language to the state’s current standard, avoiding creation of additional bureaucracy that only benefits providers.

SB 1676

Sponsors: Senator Bill Albritton (R-Bartow)

THE SO-CALLED GOOD FOR RESIDENTS…
✓ The only thing “good” we can say about this bill is that, we hope, its demise will be quick.  Other than that, nothing.

THE VERY REAL BAD FOR RESIDENTS…
✓ Authorizes overtasked and insufficiently trained caregivers the agency to administer medications to residents.
✓ The bill uses vague language to determine a caregiver’s “competency." 
✓ Caregivers being exposed to the threat of potentially damaging liability, may result in questionable decision making on the front lines.  

SB 1676 would usher in some questionable features to an already complicated long-term care system. The bill would allow licensed nurses to “delegate” some of their tasks, including medication administration, to certified nursing assistants.

Florida nursing homes already have a less than stellar medication administration record.  Nearly 60 percent of the state's nursing homes were cited one or more medication-error related deficiencies over the past three years, according to federal inspection data.  SB 1676 all but guarantees more residents will suffer harm from medication neglect.   

But this bill is not only bad for residents, it's also grossly unfair to frontline caregivers.  These are the folks who are the backbone of the long-term care system.  They are very often overtasked due to inadequate staffing levels.  SB 1676's demand for them to complete tasks outside of their skillset--without proper supervision, without sufficient staff support, and without the proper training--is a disservice to them.  

Senator Albritton attempts to overcome some of the training shortcomings by proposing that caregivers complete an initial six-hour training intensive followed by an annual, two-hour continuing education course.  After that, a licensed nurse must determine if the caregiver is “competent” to be assigned the new responsibilities. The prerequisites for such “competency” are inadequately explained, but could vary from nurse to nurse.

Caregivers should be troubled about the plausibility of this additional workload.  

Recent changes to Florida law have made it possible for providers to share liability for negligence to individual care workers.  Inadequately trained caregivers asked to complete clinical tasks in a fast-paced, understaffed health care environment may result in negative outcomes for residents, and potentially, for caregivers by exposing them to economically catastrophic lawsuits.  

This entire bill seems to be a carefully-stacked disaster for both residents and care workers.

RECOMMENDATION: Outside of a complete withdrawal of SB 1676, amend to permit only those nursing homes with the best quality of care records and the highest staffing levels to employ certified nursing assistants in administering medication to residents with the proper training and supervision.

UPDATE: Senator Albritton amended SB 1676 by removing the delegation of medication administration to nursing home caregivers and by clarifying feeding assistant hours and training.  The Health Policy Committee favorably adopted his amendment.  

SB 1726 / HB 731

Sponsors: Senator Bean (R-Jacksonville); Representative Perez (R-Miami)

THE SO-CALLED GOOD FOR RESIDENTS…
✓ Not even a surreptitious good cloaked within this provider friendly bill.  

THE VERY REAL BAD FOR RESIDENTS…
✓ Slashes inspections at nursing homes with severe deficiencies.

SB 1726 / HB 731 reduce inspection frequency for those nursing homes cited a Class I violation (Immediate Jeopardy) or two or more Class II violations (Actual Harm) within a 60-day period.  The proposals decrease that frequency from every six months for two years down to only one subsequent, additional inspection.  In other words, nursing homes with bad nursing home care will have less oversight--half as much accountability as they do now.  

When the terrible things happen in nursing homes (when the care is so bad that it can be even fatal for residents), Florida law requires state regulators to conduct additional inspections to ensure nursing homes get back on track.  These additional checks provide a necessary safety net for residents to ensure no subsequent lapses occur in care.  But SB 1726 / HB 731 yank that safety net right out from under the residents. 

We believe this legislation offers bad operators far too much leniency.  SB 1726 / HB 731 contradict the recent Government Accountability Office report that found "nursing homes need improved oversight ... because of an increased number and severity of abuse deficiencies."  

RECOMMENDATION: Revise SB 1726 / HB 731 to strengthen, not weaken, nursing home oversight by doubling inspections for facilities cited one or more severe deficiencies.  

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